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OEO, V, LTSVERETTp 

RECEIVED 




HISTORY 



OF THE 



HARVARD LAW SCHOOL 



AND OF 



EARLY LEGAL CONDITIONS 
IN AMERICA 




By 



CHARLES WARREN 

tt 

OF THE SUFFOLK BAR 



VOLUME I. 

ILLUSTRATED 



NEW YORK 

LEWIS PUBLISHING COMPANY 
1908 



Copyright, 1908, 

by 
CHARLES WARREN. 



INSCRIBED 

TO 
A. B. W. 



but for whom, this book would 
never have been undertaken. 



Preface 



Justinian, in his directions to the compilers of his Pandects, 
wrote : 

Begin, then, to instruct, with the guidance of God, your scholars 
in the science of the Law ... to the end that they may be 
made worthy ministers of justice and of the Republic. 

Such instruction and such end have been the aim of Harvard 
Law School since its foundation. If less than this were true, 
there would be no occasion for this book. 

In the preface to the first volume of his Reports, Coke said : 

It is therefore necessary that memorable things should be 
committed to writing (the witness of times, the light and life of 
truth) and not wholly be taken to slippery memory, which seldom 
yieldeth a certain reckoning. 

"Memorable things" and memorable men have impinged upon 
the past of the Harvard Law School, and it has been my task to 
fix in writing some impressions, hitherto unpublished, of that past 
from men who formed a part of it, and to gather together from 
the disjointed writings of others their records of that past. 

When I first began to write this history, I deemed it necessary 
to describe the legal conditions existing in Massachusetts at the 
date of the founding of the Law School. To do this, it became 
requisite to show the difference between the Bar of that State and 
of other States. This led me to a consideration of the history 
of the early American Bar how it was created, how it was edu- 
cated, and what were the influences which promoted or retarded 
its growth. So arose the addendum to my title "And of Early 
Legal Conditions in America." 

If further excuse is needed for thus developing the scope of 
this book, I might say^ that no consecutive summary of the early 
history of lawyers in this country has ever yet been made, so far 
as I am aware, and there seems a real vacancy in legal literature 
to be filled, however insufficiently. This portion of my work does 
not claim to be a deep historical research among original records, 



vi HARVARD LAW SCHOOL. 

but rather the collation, for convenient reference and from 
hundreds of scattered sources, of the scanty, available information 
as to the rise of the American Bar. 

The reader who wishes to concern himself merely with the 
Law School and not with early American legal history is therefore 
advised to begin at Chapter XII. 

In recording the history of the Law School itself, I have had 
three things especially in view; first, to set forth events, facts, 
and conditions in the language of the contemporary actors, if 
possible; second, to keep constantly before the reader the legal 
and political conditions contemporaneous with the various stages 
of the life of the School though John Cotton, the old Puritan, 
may have believed that "the more any law smells of man, the 
more unprofitable", the writer of to-day knows that unless his 
law history is redolent of man and man's deeds, it will be a dry 
and unsavory work. Third, I have accumulated, as far as 
possible, purely statistical and routine matters in chapters by 
themselves, so that by judicious skipping of these chapters the 
reader may, I hope, find an interest in the others, only slightly 
obstructed by bald facts and figures. 

Volume III, containing the Alumni Roll, has not been written 
by me, but has been compiled by the publishers, subject to my edi- 
torial suggestions. While it is impossible to make such a roll 
absolutely complete, requests for biographical data have been sent 
to all living graduates ; and as to deceased graduates, the mass of 
facts collected by the Law School Librarian, John H. Arnold, at 
the time of making the Law School Catalogue, as well as 
biographical dictionaries, etc., have been largely used. 

I have been hampered in describing the Law School between 
the years 1817 and 1870, owing to the non-existence of any Law 
Faculty or other official Law School records covering that period, 
so that I have had to search for the official facts through the 
mass of papers, letters, reports and records in the Harvard 
Archives pertaining to the College in general. I wish to acknowl- 
edge my indebtedness to the courteous and ready assistance and 
suggestions given me in this work by the officials of the Harvard 
College Library and by Mr. John H. Arnold and Professor James 
Barr Ames of the Law School. My grateful acknowledgements 
are also due to William Kent, Artemas H. Holmes and James G. 
Croswell, all of New York, William V. Kellen and Ezra R. 
Thayer of Boston ; Charles P. Greenough of Brookline, Mass. ; 



PREFACE. vii 

Edward H. Daveis of Portland, Maine; the Misses Parsons of 
Cambridge, Mass. ; Miss Harriet G. Loring of Washington, D. C. ; 
Mrs. Charles Bradley of Providence, R. I. ; Mrs. Alexander S. 
Porter of Boston ; the officials of the Massachusetts Historical 
Society and the Massachusetts State Libraries ; and to many 
others, graduates of the School and relatives of the Professors, 
who have kindly loaned to me autographs, letters and pictures, 
and who have sent to me their reminiscences. 

While I cannot hope that this history is free from errors, I 
can only say, that in writing it I have at times been obliged to 
conform to Lord Eldon's description of the life of a student of 
the law, and to "live like a hermit and work like a horse". The 
labor will be more than repaid, however, if the results shall prove 
to be of any service to Harvard, or shall (in the words of Coke) 
"tend to some discharge of that great obligation of duty wherein 
I am bound to my profession. 

Accipe, quo semper finitnr epistola rerbo, 
Et vigeant jura et (lector amice) Vale." 

CHARLES WARREN. 

Boston, Mass., October 27, 1908. 



Errata and Addenda 

Volume I. 

Page 17, line 12. "June 2" instead of "Jan. 18". 

Page 17, line 13. "October 13" instead of "June 21". 

Page 18, line 18. "New England" instead of "American". 

Page 22, line 9. Insert after "1647" the words "the Governor 
and four assistants and". 

Page 22, last line. Insert ; "That alone was declared to be law 
which was made such by the Assembly. This meant the 
exclusion of English law when unconfirmed by the As- 
sembly." 

Page 24, line 12. Insert after "laymen" the words "the Presi- 
dent and Council acting as the Court, with the General 
Assembly as a Court of Appeal." 

Chapter I end. Insert "The American Colonies in the Seven- 
teenth Century", by Herbert L. Osgood (1904-07). 

Page 33, last line. "1731" instead of "1733". 

Page 36, line i. "About 1307" instead of "in 1327". 

Page 40, line 23. Should read, "Dialogus de Scaccario written 
in 1178". 

Page 40, line 26. "About 1290" instead of "1275". 

Page 40, line 30. "About 1307" instead of "1327". 

Page 40, line 34. "1472" instead of "1742". 

Page 40, Note. Add, "The Sources of English Laiv, by H. 
Brunner ; Materials for the History of English Law, by F. 
W. Maitland, Pol. Sci. Qu., Vol. IV (1889)". 

Page 41, last line. "1628" instead of "1633". 

Page 60, line 37. "Associate" instead of "Assistant". 

Page 85, line 8. Note reference (9) instead of (5). 

Page 88, last line. Insert ; "The early courts were the local or 
Courts of Sessions, and the Court of Assizes consisting of 
the Governor and Council. In 1683. the Governor and 
Council were made a Supreme Court and distinct Courts 
of Sessions were constituted for each county." 

Page 94, line 24. "Twelve" instead of "six". 

Page 94, line 33. "1757" instead of "1751". 

Page 95, Note 6. Should read "Judge of the Supreme Court 
1790, Chief Justice 1798". 

Page 95, Note 4. Should read "Chancellor 1777-1801". 

Page 96, line 2. Should read "Daniel D. Tompkins". 

Page 109, line 19. Insert : "Up to 1683, all judicial business was 
done by the Governor and Council. In that year, a Pro- 
vincial Court was established, and the Governor and Coun- 
cil became a Court of Appeal." 



x ERRATA AND ADDENDA. 

Page 112. line 22. "Up to 1702" instead of "At first". 

Page 114, line 32. Insert after "reports in" the date "1799". 

Page 131, line 14. "Selden" instead of "Seldon". 

Page 142, Note I. Strike out "Solicitor General to his Majesty". 

Page 188, line 20. Strike out "who". 

Page 207, line 32. "1805" instead of "1806". 

Page 235, line 4. "Johnson's dissenting" instead of "Mar- 
shall's". 

Page 238, line 10. "1807" instead of "1907." 

Page 247, line 27. "1805" instead of "1806". 

Page 264, Notes. Renumber notes 1-6 as 7-12, and notes 7-12 
as 1-6. 

Page 307, line 11. Insert "were" before "referred". 

Page 327, lines 32-33. Strike out all words after "improve it". 

Page 328. line 22. Note reference (2) instead of (i) ; same in 
note. 

Page 344. line 18. Note reference (2), instead of (i) ; same in 
note. 

Page 360, line 5. -"One of the first" instead of "the first". 

Page 366, line 29. Note reference (2) instead of (i) ; same in 
note. 

Page 371, line 15. "Harrington's" instead of ''Barnington's". 

Page 378. line 28. Insert "Richard S." before "Coxe". 

Page 397, line 26. "Sullivan" instead of "Livingston". 

Page 431, line 30. Insert "he" before "wrote". 

Page 448, line 8. "forty-nine" instead of "thirty-nine". 

Page 448. Note, last line. "49" instead of "39". 

Page 505. line i. "Gardiner" instead of "Gardner". 

Volume II. 

Page 114, line 22. "The Columbian Law School in Washing- 
ton" instead of "that College". 

Page 124, line 17. "fifty-one" instead of "fifty". 

Page 132, line 15. "Company" instead of "Corporation". 

Page 201. last line. Note reference (2) instead of (i); same 
in note. 

Page 226, line 5. "O'Conor" instead of "O'Connor". 

Page 240. Note 3. "(1860)" instead of "(1866)". 

Page 259, line 37. "Arphaxed" instead of "Asphaxed". 

Page 274, line 27. "L. S. 1861-62" instead of "U. S. 1861-62." 

Page 331, Note. "Harvard" instead of "Howard". 

Page 432. See Appendix I, page 515. 

Page 443. See Appendix I, page 515. 

Page 463. See Appendix I, page 515. 

Page 476. See Appendix I, page 515. 

Page 502, line 10. "result" instead of "results". 



Table of Contents 

VOLUME I. 

Preface v 

Errata and Addenda ix 

Introductory Chapter I 

Chapter I. New England Law and Lawyers in the I7th Cen- 
tury 7 

Chapter II. English Law, Lawyers, and Law Books and 

Reports in the I7th Century 31 

Chapter III. New England Law and Lawyers in the i8th 

Century 46 

Chapter IV. Law and Lawyers in the i8th Century, in 
Maryland, Virginia, New York, Pennsylvania, New 

Jersey, and the Southern States 72 

Chapter V. The Law and Lawyers in Engalnd in the i8th 

Century 117 

Chapter VI. A Colonial Lawyer's Education in the i8th 

Century 126 

Chapter VII. Early American Barristers, and Bar Asso- 
ciations 151 

Chapter VIII. Early Law Professorships 165 

Chapteh IX. Obstacles and Prejudices 186 

Chapter X. Early American Law Books 203 

Chapter XL The Bar and the Law 1789-1815 215 

Chapter XII. The Massachusetts Bar 1785-1815 250 

Chapter XIII. Joseph Story 266 

Chapter XIV. Isaac Royall and Isaac Parker 278 

Chapter XV. The Founding 304 

Chapter XVI. Cambridge and Harvard College, in 1817. . 316 

Chapter XVIL The First Decade 333 

Chapter XVIII. The Law Library 1817-1829 371 

Chapter XIX. The Bar and the Law 1815-1830 377 

Chapter XX. Nathan Dane and the New Regime 413 

Chapter XXI. The Ashmun Period 1829-1833 433 

Chapter XXII. Dane Hall and the Law Library 462 

Chapter XXIII. The Story-Greenleaf Period 1833-1836. . 480 
Chapter XXIV. The Charles River Bridge Case 507 



xii TABLE OF CONTENTS. 

VOLUME II. 

Chapter XXV. The Story-Greenleaf Period 1837-1845. ... I 

Chapter XXVI. Reminiscences of Story 47 

Chapter XXVIL The Moot Courts 70 

Chapter XXVIIL The Library 1833-1845 77 

Chapter XXIX. Courses, Growth and Finances 1833-1845 84 

Chapter XXX. The Transition Period 1845-1850 95 

Chapter XXXI. The Era of Railroad and Corporation Law 133 

Chapter XXXIL The Anti-Slavery Period 1 156 

Chapter XXXIII. The Anti-Slavery Period II 187 

Chapter XXXIV. The Federal Bar and Law 1830-1860. . 225 

Chapter XXXV. New Law 1830-1860 234 

Chapter XXXVI. The War Period 1860-1869 262 

Chapter XXXVII. Parker, Parsons and Washburn 302 

Chapter XXXVIIL The Marshall and other Law Clubs.. 319 

Chapter XXXIX. The Law Library 1845-1869 332 

Chapter XL. Instruction and Finances 1845-1869 342 

Chapter XLI. Eliot and Langdell 354 

Chapter XLIL The Trial Period 1871-1881 379 

Chapter XLIII. What the Case System Really Is 419 

Chapter XLI V. The Langdell Period 1882-1895...: 428 

Chapter XLV. Langdell as a Teacher 454 

Chapter XLVI. The Ames Period 461 

Chapter XLVII. The Library 1869-1907 483 

Chapter XLVIII. Influence of the School and of the Case 

System 496 

Appendix I. Appointment of Professors 515 

Appendix II. Law School Students of 1862 517 

Appendix III. The Law School in the Spanish War 519 

Appendix IV. Conditions 1870-1907 520 

Appendix V. Harvard Law Association 538 

Appendix VI. The Harvard Law School Association .... 545 



Illustrations 

VOLUME I. 

PAGE 

Joseph Story Frontispiece 

James Wilson 133 

George Wythe 170 

Law School, Litchfield, Conn 182 

Samuel Dexter 221 

Theophilus Parsons 256 

Charles Jackson 263 

Joseph Story 272 

Isaac Royall and his Sisters 278 

John Lowell 288 

Isaac Parker 298 

Cambridge Common in 1805 321 

Cambridge College in 1805 330 

Asahel J. Stearns 344 

Josiah Quincy 364 

Nathan Dane 414 

Joseph Story, Dane Professor 1829-1845 432 

Fac-simile, Certificate 446 

Harvard Square in 1831 460 

Dane Hall, 1832-1845 476 

Simon Greenleaf 484 

Charles Sumner 496 

Simon Greenleaf 528 



INTRODUCTORY CHAPTER. 

The Harvard Law School, the first collegiate school of law 
now in existence, was founded in Massachusetts in 1817. The 
first private school of law, the Litchfield Law School, was opened 
in Connecticut thirty-three years earlier, in 1/84. The first 
American professorship of law was established at the College of 
William and Mary in Virginia in 1779. 

For one hundred and fifty years prior to 1779, lawyers were 
obliged to rely upon their own exertions for a legal education. 

The early lawyers were few in number, lacking in education, 
and weak in influence. 

It was sixty-six years from the landing of the Pilgrims and 
fifty years from the foundation of Harvard College before Har- 
vard sent out, in the Class of 1686, her first graduate destined 
to be trained for the bar, Benjamin Lynde. It was one hundred 
and ten years after the establishment of Massachusetts Bay Col- 
ony before a lawyer sat in her General Court as a legislator- 
John Read, in 1738. 

It was one hundred and thirty-five years before a regular Bar 
Association existed in the Province of Massachusetts. 

Harvard College was one hundred and forty-eight years old 
before she admitted a lawyer to her councils as a member of 
the Corporation John Lowell, in 1784. 

This lack of lawyers in the early days of American history, 
and the lateness of the establishment of any adequate means of 
legal education cannot properly be understood without some 
knowledge of the conditions surrounding the practice of law and 
its development in the American Colonies and in the early years 
of the United States. 

The real facts in the history of any institution cannot be fully 
appreciated, if looked at as disconnected and isolated. 

As Maitland says, "Such is the unity of all history that anyone 
who endeavors to tell a piece of it must feel that his first sen- 
tence tears a seamless web a statute of limitations must be 
set ; but it must be arbitrary. The web must be rent ; but as we 
lend it we may watch the whence and whither of a few of the 



2 HARVARD LAW SCHOOL. 

ravelling threads which have been making a pattern too large 
for any man's eye."(i) 

And as John Morley says, "I want to know what men did in 
the thirteenth century, not out of antiquarian curiosity, but be- 
cause the thirteenth century is at the root of what men think and 
do in the nineteenth." (2) The state of legal education at the 
present time therefore can be best understood by an understand- 
ing of its past. 

No attempt has hitherto been made, so far as is known, to 
bring together from the innumerable scattered sources the scanty 
information existing in relation to the early Bar of the Ameri- 
can Colonies, Provinces, and States. 

The first eleven chapters of this book therefore are devoted 
to an effort to give some idea of the lawyers, the practice of law, 
the legal conditions of the times, both in America and England, 
and the development of legal education prior to 1817 the year 
of the foundation of the Harvard Law School. 

If the results of this effort, in chapters two and five, shall 
appear to repeat only well known and trite facts, the excuse may 
be offered that, though a twice-told tale, it may become a newly- 
lighted tale in the juxtaposition in which it is presented. And if 
the narrative of the early Bar, in chapters one, three, and four, 
shall seem to consist of a mere marshalling, in wearisome rank, 
of bare names and dates, the reader must remember that fre- 
quently little more is known of famous lawyers than their names 
and the titles of their cases ; and that the lack of posthumous im- 
pression has long been reckoned one of the misfortunes attend- 
ing the practice of the legal profession. (3) 

(i) Prologue to a History of English Law Law Quarterly Review 
Vol. XIV (1898). 

(2) The Problems of To-day for the History of the Common Law, 
by J. H. Wigmore. 

(3) "The fame of the great lawyers, so far as it is built up in the 
active labors of the forum, rests proverbially upon a most slippery basis. 
No man has yet earned a reputation that has outlived the generation who 
witnessed his triumphs, upon the mere faith of a reporter's notes. We 
have an indistinct rumor, an imperfect tradition of the glories of an 
old forensic renown, in some remembered name of the last century. 
We turn to the reports to find some picture of that rich and glowing 
mind which is said to have wrought effects almost miraculous upon the 
auditors of the courts in the past time, and to have swayed the multitude, 
in its day, with a command which none could resist. How "shrunken 
and wooden" do we find the carved image of that fame in these dusty 
crypts of the law ! We look elsewhere in vain. The overlabored actor 
himself has had no time or no inclination to embody and preserve the bril- 
liant thoughts or the learned reasons which, in the utterance, so dazzled and 



INTRODUCTORY CHAPTER. 3 

Six facts stand out prominently in the history of the develop- 
ment of early law practice in the American Colonies and Pro- 
vinces. 

First, the rigid state of the Common Law itself at the time. 

As has been well said, "It is not altogether strange that our 
law at that time should seem to a plain Puritan to be a dark 
and knavish business; for it was still heavily encumbered with 
the formalism of the Middle Ages. It was, indeed, already, like 
Milton's lion, 'pawing to get free its hinder parts;' and there 
was a sort of truth in Coke's dithyrambic praise of it, then but 
recently published, that 'reason is the life of the law nay, the 
common law itself is nothing else but reason;' but it was 
the truth of prophecy, and not the truth of fact. The law 
also was then mainly hidden away from laymen and wrapped in 
a foreign tongue; and it was taught at the Inns of Court in the 
rudest way ' hanc rigidam Minervam,' said Sir Henry Spel- 
man, a contemporary of our founders, 'ferreis amplexibus coer- 
cendam.' 'My mother,' said Spelman, 'sent me to London to 
begin upon our law,' (1570) 'Cujus vestibulum salutassem 
reperissemque linguam peregrinam, dialectum barbarum, meth- 
odum inconcinnam, molem non ingentem solum sed perpetuis 
humeris sustinendam, excidit mihi (fateor) animus.' "(i) 

Second, the unpopularity of lawyers as a class. In all the Colo- 
nies, he was a character of disrepute. In many of them, per- 
sons acting as attorneys were forbidden to receive any fee; in 
some, all paid attorneys were barred from the courts; in 
all, they were subjected to the most rigid restrictions as to fees 
and procedure. Even in England, the lawyer's reputation may 
be estimated to a certain extent by the titles of frequent tracts 
which were printed in London, like The Downfall of Unjust 
Lawyers; Doomsday Drawing Near with Thunder and Light- 
ning for Lawyers, (1645) > ^ Rd f or Lawyers Who are Hereby 
declared Robbers and Deceivers of the Nation; Essay Wherein 
is Described the Lawyers, Smugglers and Officers Frauds, 
(1675) 5(2) And in the minds of many Englishmen the lawyer 



charmed the hearers. The finer essences have fled the dead skeleton 
only remains." Memoirs of the Life of William Wirt, by John P. Ken- 
nedy, Vol. II. 

(1) Speech of James B. Thayer at the 250th Commemoration of Harvard 
College, Nov. 5, 1886. 

(2) See Lawyer and Client, by William Allen Butler (1871). 
So John Milton said in 1640: 



4 HARVARD LAW SCHOOL. 

was synonymous with the cringing Attorney Generals and So- 
licitor Generals of the Crown and the arbitrary Justices of the 
King's Court, all bent on the conviction of those who opposed 
the King's prerogatives, and twisting the law to secure convic- 
tions. 

Third, the scanty materials at hand in the Colonies for the 
study of law, and the scarcity of printed law books and reports, 
even in England. 

Fourth, the supremacy of the clergy in the magistracy and in 
the courts of New England. "During the period from 1620 to 
1692," said a writer in the North American Review in 1829, "no 
trace can be found of law as a science or profession. The clergy 
possessed, as in England, much of the legal knowledge of the com- 
munity." ( i ) It was to their clergyman that the colonists looked 
to guide their new governments, and in their clergymen, they 
believed, lay all that was necessary and proper for their lawful 
and righteous government. It followed, therefore, that the "Word 
of God" played a greater part in the progress and practice of 
the law than the words of Bracton, Littleton or Coke. Where 
such was the condition, there was more need of clever clergy- 
men than of trained lawyers. 

Fifth, the participation and interference of the royal Governors 
in the judicial system of the Colonies. 

As early as 1747, Dr. W. Douglass, in his Summary of the 
Present State of the British Settlements in North America, 
wrote that "it is said that a Governor and such of the council as 
he thinks proper to consult with, dispense with such provincial 
laws as are troublesome or stand in their way of procedure of 
their court of equity so called." In New York, a royal Governor 
found it necessary to remove a Chief Justice who failed to de- 
cide in his favor, in order "to discourage advocates of Boston 
principles." In Maryland, the Bar was at constant war with 
the Governor in order to preserve the legal rights of the Colony 
from the arbitrary dictates and proclamations of the executive. 
In South Carolina, the lawyers were forced to petition the pro- 



"Most men are allured to the trade of law, grounding their purposes 
not on the prudent and heavenly contemplation of justice and equity 
which was never taught them, but on the promising and pleasing thoughts 
of litigious terms, fat contentions and flowing fees." 

(i) See review of American Jurist, Vol. I in North American Review. 
Vol. XXIX (Oct. 1829). 



INTRODUCTORY CHAPTER. 5 

prietary in complaint of the Governor holding all the judicial 
offices, (i) 

Sixth, the ignorance of the judges and their lack of legal edu- 
cation. In 1764, Thomas Pownall, "late Gov. Capt. Gen. Com- 
mander in Chief and Vice Admiral of His Majesty's Provinces 
Massachusetts Bay and South Carolina and then Gov. of New 
Jersey," wrote(2) : 

I cannot in one view better describe the defects of the provin- 
cial courts in these infant governments than by that very descrip- 
tion which my Lord Chief Justice Hale gives of our county 
courts in the infancy of our own government; wherein he men- 
tions, 

"First, the ignorance of the judges, who were the freeholders 
of the county. 

Secondly, that these various courts bred variety of law, espe- 
cially in the several counties; for the decisions or judgments be- 
ing made by divers courts and several independent judges and 
judiciaries who had no common interest amongst them in their 
several judicatories; thereby in process of time every several 
county would have several laws, customs, rules and forms of 
proceedings." 

Upon the first article of this parallel it would be no dishonour 
to many gentlemen sitting on the benches of the courts of law 
in the colonies to say that they are not and cannot be expected to 
be lawyers or learned in the law. 

As will be shown in greater detail in the first seven chapters of 
this book, all these six factors served to retard the rise of the 
American lawyer in the i/th and early i8th Centuries. 

As the struggle for Independence grew nearer, the colonists 
began to maintain more and more earnestly their absolute rights 
to the privileges of the English Common Law. Their lawyers 
made the Common Law more and more the object of study. It 
became the custom in some of the Colonies to send the young 
lawyer to England to complete his legal education. 

As the Colonies became more wealthy and commercially pros- 
perous, law books were imported from England and sold in 
increasing quantities, especially after the publication of Black- 
stone in 1765. When the Revolution broke out and the Colonies 
were thrown absolutely upon their own resources, a movement 

(1) See especially Chapter VII in The Provincial Governor, by 
Evarts B. Greene (1898). 

(2) The Administration of the British Colonies, by Thomas Pownall 
(1764). 



6 HARVARD LAW SCHOOL. 

began in several of their educational institutions to introduce the 
study of law as a part of the general system of education ; and 
various law professorships were established during the last 
twenty years of the i8th Century, though with small success. 

Then came a period of reaction. The old prejudices of the 
early i/th Century were revived against lawyers in the closing 
years of the i8th. A violent opposition to anything English, 
and especially to the English Common Law doctrines, swept over 
the United States which lasted with varying force until after 
1810. Then came the War of 1812 and the ensuing commercial 
distress and panics, diverting attention from all forms of educa- 
tion. Meanwhile, the early years of the iQth Century were the 
great formative period of American law; American law re- 
ports were being introduced, and American law books written. 
And it was under the spur of the desire to teach young men 
American law systematically and more thoroughly than they 
could be taught in law offices that the American Law Schools 
arose. 

Such in brief is the history of the legal conditions out of which 
the Harvard Law School had its origin in 1817, and which will 
be described more fully in the succeeding chapters. 



CHAPTER I. 

NEW ENGLAND LAW AND LAWYERS IN THE 17111 CENTURY. 

MASSACHUSETTS. 

Sixty-five men landed at Plymouth in 1620, no one of whom 
was a lawyer. 

Among the founders of the Massachusetts Bay Colony, 1628- 
1634, there was not an actual practising lawyer, although John 
Winthrop, its Governor, and Emmanuel Downing, the father of 
George Downing whose name stands number two on the roll 
of the first class of Harvard graduates, (Harv. 1642.), had 
been admitted to the Inner Temple in London. (i) 

Richard Bellingham, Simon Bradstreet, Herbert Pelham, John 
Humphreys, and Thomas Dudley and a few others had doubt- 
less been students o* law or university men but they were not 
engaged in the practise of the profession. 

At the beginning of this period of "Law without lawyers" in 
the Plymouth Colony, the whole community acted as the court. 
Thus in the first recorded offence against the law, in March 1621, 
"John Billington is convented, before the whole company for the 
contempt of the captain's lawful commands with opprobrious 
speeches ; for which he is adjudged to have his neck and heels 
tied together." The second offence was, as Governor Bradford 
informs us, the first duel fought in New England upon a chal- 
lenge at single combat with sword and dagger between Edward 
Doty and Edward Lester, servants of Mr. Hopkins. "They are 
adjudged by the whole company to have their head and feet 
tied together and so to lie for twenty-four hours without meat 
or drink." Later the Governor and Assistants constituted the 
Court. 

In Massachusetts Bay Colony, from 1629 to 1635, the Gover- 
nor and Assistants acted both as magistrates, legislators and 
judges ; and their proceedings as such "Court of Assistants" are 



(i) Proc. Mass. Hist. Soc. 1878, p. 3. 



8 HARVARD LAW SCHOOL. 

to be found entered in the same book and intermixed with the 
records of the General Court or Legislature. ( I ) 

After 1635 and up to 1684 the General Court acted for some 
time both as a legislature and as a judicial court of appeals. 
It met, not only to pass laws, but also "for the imposition of 
lawful fines, mulcts, imprisonments and other lawful correc- 
tion." 

In 1636, the General Court by resolve asked the Governor to 
make a draft of law "agreeable to the word of God," to be the 
fundamental law. In the meantime, the magistrates were to 
proceed in the courts to determine all causes according to the 
laws of the General Court, and where there was no law, "then 
as near the law of God as they can." (2) 

Gradually, however, the Court of Assistants became a sepa- 
rate judicial body, and by the law of 1660 their terms of sitting 
and their powers were definitely prescribed as a Superior court. 
Inferior courts were established in 1639. 

In modes of procedure, the Magistrates and the Court fol- 
lowed somewhat the general proceedings of English law ; but 
in their decisions, they were practically uncontrolled by any sys- 
tem of law. They were inclined to believe, as Winthrop said, 
that "such laws would be fittest for us which should arise pro 
re nata upon occasions." 

This was quite in accordance with the desires of the clergy, 
who then formed the prevailing power in the Colonies. 

The ministers advise in making of laws, especially ecclesi- 
astical!, and are present in courts and advise in some speciall 
causes annual and in framing of Fundamental Lawes. Matters 
of debt, trespass and upon the case, equity, yea and of heresy 
also are tryed by a jury. 

So said Thomas Lechford;(3) and as another contemporary 
writer said: 

The preachers by their power with the people made all the mag- 
istrates and kept them so entirely under obedience that they 
durst not act without them. Soe that whenever anything strange 

(1) Preface by John Noble to Records of the Courts of Assistants, 
(1901). 

Early Court Files of Suffolk County, by John Noble Publications of 
the Colonial Society of Massachusetts, Vol. Ill (1895-97). 

(2) Mass. Colonial Records, Vol. I. 

(3) Plaine Dealing, or News from New England, by Thomas Lech- 
ford (1642). 



17TH CENTURY LAWYERS. 9 

or unusual was brought before them, they would not determine 
the matter without consulting their preachers.(i) 

As an example of the intermingling of the clergy, it may be 
noted that in 1635 it was ordered that "none among us shall 
sue at the lawe before Mr. Henry Vane and the two Elders have 
had the hearing and desyding of the cause if they cann." 

But while so much power lay in the discretion of the magis- 
trates, the people felt themselves unsafe. As John Winthrop 
wrote: (2) 

The deputies having conceived great danger to our State 
in regard that our magistrates for want of positive law in any 
cases might proceed according to their discretion, it was agreed 
that some men should be appointed to frame a body of grounds 
of laws, in resemblance to a magna charta, which being allowed 
by some of the ministers and the general court, should be re- 
ceived for fundamental laws. 

It was natural, and characteristic of the times, that this 
matter of framing a code should have been entrusted by 
the magistrates to two clergymen, each of whom framed 
a separate model. Rev. John Cotton, a Fellow of Em- 
manuel College, Cambridge, England, prepared a code called 
by Governor Winthrop, "A copy of Moses, his judicials, com- 
piled in an exact method." It was founded on the Scripture 
throughout, with references thereto, and established a pure the- 
ocracy. The other was compiled by Rev. Nathaniel Ward, a 
minister at Ipswich, and the author of a curious book entitled, 
The Simple Cobbler of Agawam. He had been a barrister of 
Lincoln's Inn in England in 1615, (3) had entered the ministry 
in 1618 and been suspended for Puritanism in 1633 by Arch- 
bishop Laud. This great work of his, called, The Body of Lib- 

(1) An Account of the Colonies, Lambeth MSS., Perry's Historical 
Collection III., 48. 

(2) History of New England, by John Winthrop, Vol. I., p. 194. The 
record reads as follows : "At the General Court, May 25, 1636, it was 
ordered that the Governor (Henry Vane), the Deputy Governor (John 
Winthrop), Thomas Dudley, John Haynes, Richard Bellingham, Esquires, 
Mr. (John) Cotton, Mr. (Hugh) Peters and Mr. Shepherd are entreated 
to make a draught of laws agreeable to the word of God which may be 
the Fundamentals of this Commonwealth and to present the same to the 
next General Court." 

See Cotton's Moses, His Judicials, in Mass. Hist. Soc. Proc. (2nd Series,) 
Vol. XVI. (1002). 

(3) See Gray, C. J. in Jackson v. Phillips, 14 Allen (Mass.) p. 599 
(1867). 



io HARVARD LAW SCHOOL. 

erties, consisting of one hundred fundamental laws, is en- 
titled to the fame of being the first American Law Book.(i) It 
was accepted by the people in 1641, as better suited to the times 
than Cotton's Code. (2) Still, even in Ward's Code it is to be 
noted that in cases not therein provided for, it was the "word of 
God" which was to guide the courts, and not the English Com- 
mon Law. Thus Liberty Number I. provided: 

I. No man's life shall be taken away, no man's honour or 
good name shall be stayned, no man's person shall be arrested 
restrayned, banished, dismembered, nor any wayes punished, no 
man shall be deprived of his wife or children, no man's goods 
or estates shall be taken away from him nor any way indam- 
maged under colour of law or Countenance of Authority, unless 
it be by virtue or equitie of some expresse law of the Country 
warranting the same established by a generall court and suffi- 
ciently published, or in case of the defect of a law in any particu- 
lar case by the word of God. And in Capitall cases, or in cases 
concerning dismembering or banishment, according to that word 
to be judged by the Generall Court. (3) 

Many other enactments about this time were far different from 
the English Common Law of the day, as for instance, that 
there should be no monopolies except such as were profitable 
to the country, and those for a short time only; that all deeds 
of conveyance, whether absolute or conditional, should be re- 
corded ; that instead of the right of primogeniture the elder son 
should have a double portion of his parent's real and personal 
estate; that no injunction should be laid on any church, church 
officer, or member, in point of doctrine, worship or discipline,, 
whether for substance or circumstance, besides the institutions 
of the Lord. 

This Body of Liberties was probably not printed in full, or 



(1) No copy of this was discovered until 1843 when Mr. Francis C. 
Gray found it in the Boston Athenaeum. See Mass. Hist. Soc. Coll. 
Vol. VIII (3rd Series) p. 196. 

See also Colonial Laws of Massachusetts by W. H. Whitmore (1890). 

(2) In 1641 there was published in London An Abstract of the Lawes 
of New England As they are now Established, which is probably Cotton's 
Code. See Mass. Hist. Soc. Proc. (2nd Series) Vol. XVI (1902). 

(3) The General Laws and Liberties of Neiv Plimouth Colony also pro- 
vided (1671) that "no person shall be endamaged in respect of Life, Limb,. 
Liberty, Good name or Estate, under colour of Law or countenance of 
authority, but by virtue or equity of some express Law of the General 
Court of this Colony, the known Law of God, or the good and equitable 
Laws of our Nation suitable for us." 



17TH CENTURY LAWYERS. IT 

published at the time ; but in 1649 a revision of all the laws then 
in existence was published, known as the Laws and Liberties, 
a similar revision was made in 1660, (the earliest, of which any 
copy is extant), and another, in 1672. (i) 

In 1644, the General Court requested the opinion of the elders 
as to whether the magistrates should be guided by the word of 
God in cases not covered by statute, and the elders replied in the 
following terms : 

We do not find that by the patent they are expressly directed 
to proceed according to the word of God ; but we understand that 
by a law or liberty of the country, they may act in cases wherein 
as yet there is no express law, so that in such acts they proceed 
according to the word of God. 

\ 

In 1645, the General Court itself stated, in substance: 

The laws of the colony are not diametrically opposed to the 
laws of England for then they must be contrary to the laws of 
God on which the common law, so far as it is law, is also 
founded. Anything that is otherwise established is not law but 
an error. (2) 

It is evident that with svich a basis for the decisions of the 
courts, there was little need of lawyers learned in the English 
Common Law. "When the holy Scriptures were considered as 



(1) See The Body of Liberties of 1641, by H. H. Edes, Publications of 
the Massachusetts Colonial Society, Vol. VII. (1900-1902). 

(2) The foundation of the law upon the Word of God was even at this 
time a familiar doctrine even in Common Law England. 

Thus as late as 1650, Lord Chief Justice Keble said in 5 How. St. Trials 
that the law of England was "the very consequence of the very decalogue 
itself as really and truly the law of God as any Scriptural phrase. . . . 
Whatever was not consonant to the law of God in Scripture .... 
was not the law of England but the error of the party which did pronounce 
it." 

So John Milton in his Defence of the People of England in 1651 ap- 
pealed "to that fundamental maxim in our law by which nothing is to be 
counted as law that is contrary to the law of God or of reason.'' 

In a book entitled, Quaternio or a Fourfold way to a Happy Life. 
Set forth in a Discourse between a Countryman and a citizen, a divine 
and a lawyer, wherein the Commodities of the Countrey and the Citie; 
together with the excellency of Divinitie and the Law are set forth, 
published in 1636 by Thomas Nash of the Inner Temple, it is said "Now 
because it is a hard thing, yea indeede impossible almost, for a man 
to observe these lawes which he knoweth not ; therefore I did desire 
to know the Lawes of the Kingdome wherein I lived and thereby as a 
rule to frame and fashion all my actions by .... I had often heard 
and upon Inquiry I have found it to be true that all Lawes political! are 
meere derivatives out of the primitive Law of God and Nature." 



12 HARVARD LAW SCHOOL. 

a proper guide in all cases of doubt, and the parties spoke for 
themselves, there was no place for an order of lawyers."(i) 

The important trials early in the Century were conducted with 
entire disregard of the fundamental principles of the Common 
Law. Thus, in the trial of Anne Hutchinson before the General 
Court in 1637, her plea that, "I am called to answer before you, 
but I hear no things laid to my charge," was disregarded ; and her 
demand that the witnesses against her be sworn, was complied 
with only partially. So in the trials of the Quakers, in 1661, be- 
fore the Court of Assistants, their appeals to the "law of Eng- 
land" and their denial of the right of the Colony to "make laws 
repugnant to the laws of England," were swept aside by the 
answer, "You have broken our law, and we shall try you. "(2) 
It seems to be a fact that the English Common Law was used in 
deciding cases merely as an illustration. Thus, an account is 
given in the Hutchinson papers (3) of a case before one Symonds, 
a magistrate, involving the right of taxation to pay for a dwelling 
house voted by a town to its minister. The magistrate found for 
the plaintiff, saying that the "fundamental law which God and 
nature has given to the people cannot be infringed ;" and although 
he quoted writers like Finch and Dalton, saying, "Let us not 
despise the rules of the learned in the law of England who have 
every experience," the precedents on which he relied were colon- 
ial, and the Common Law was regarded as binding, only so far 
as it was expressive of the Law of God. 

The early court records themselves show the constant citation 
of scriptural authority. "The reasons of Appeal and the Answers 
make much use of quotations from Scripture a pertinent quo- 
tation seemed sometimes decisive in settling a disputed point. 
Possibly there was sometimes a readier acquiescence in an opin- 
ion of Moses that in one of the Lord High Chancellor." (4) 

There can be little wonder therefore that "for more than the 
ten first years," as Hutchinson says, "the parties spake for them- 
selves for the most part; sometimes, when it was thought the 
cause required it, they were assisted by a patron, or man of su- 



(1) Address before the Suffolk Bar on Origin and History of the Legal 
Profession in Massachusetts, by William Sullivan, in 1825. 

(2) See American Criminal Trials, by P. W. Chandler (1841). 

(3) Hutchinson Papers, Vol. II p. I. 

(4) Early Court Files of Suffolk County, by John Noble Publications 
of the Massachusetts Colonial Society, Vol. III. ( 1895-97) . 



17TH CENTURY LAWYERS. 13 

perior abilities without fee or reward."(i) And though Ward, 
in a sermon preached at the annual election in 1641, had de- 
clared, that the magistrates "ought not to give private advice 
and take knowledge of any main cause before it came to public 
hearing," his proposition was rejected on the ground that its 
adoption would render it necessary to provide lawyers to direct 
men in their causes. 

Probably the first lawyer in the Colonies was Thomas Morton, 
described by Governor Bradford as "a kind of pettie-fogger of 
Furnewells Inne," although set forth by himself on the title 
page of his book, The New British Canaan (1637), as "f Clif- 
ford's Inn Gent." (2) Governor Dudley spoke of him as "a 
proud, insolent man," who had been "an attorney in the West 
Countries while he lived in England." He came to Massachu- 
setts in 1624 or 1625 with Captain Wollastom and settled in what 
is now Quincy. At his place named Merry Mount, he opened, 
as the old chronicler says, "a school of atheisme, set up a may- 
pole and did quaff strong waters and act as they had anew re- 
vived and celebrated the feast of ye Roman Goddess Flora or 
the beastly products of ye madd Bacchanalians." The patience 
of the rulers being exhausted, he was imprisoned and then shipped 
out of the Colony. 

The first educated lawyer who practised in the Colony appeared 
on the horizon in 1637 or 1638, when Thomas Lechford, "of 
Clement's Inn in the County of Middlesex, Gentleman" (3) land- 
ed in Boston. For three years he was, so Washburn calls him, 
"the Embodied Bar of Massachusetts Bay." (4) Under the con- 
ditions prevalent, he found the practice of law in Boston far from 



(1) History of Massachusetts Bay Colony, by Thomas Hutchinson, 
Vol. I. 

(2) Clifford's Inn and Furnewell's Inn were Inns of Chancery. The 
Inns of Chancery were so called, "probably because they were appropriated 
to such clerks as chiefly studied the forming of writs which was the 
province of the cursitors who were officers of Chancery, such as belong to 
the Courts of Common Pleas and King's Bench, and in Stowe's time 
were chiefly filled with attorneys, solicitors and clerks." They were in- 
ferior in rank to the Inns of Court, at which only those who were study- 
ing to be called as barristers were admitted. See Chapter II. Infra. 

(3) Mr. Justice Shallow "By yea or nay, sir, I dare say my cousin 
William is become a good scholar. He is at Oxford, still, is he not?" 

Silence "Indeed, sir, to my cost." 

Shallow "He must then to the inns of court shortly. I was once of 
Clement's Inn, where, I think, they will talk of mad Shallow yet." 
King Henry IV, Part II, Act III, Scene 2 (Printed in 1600). 

(4) Judicial History of Massachusetts, by Emory Washburn, (1840). 



i 4 HARVARD LAW SCHOOL. 

lucrative ; and he described himself as being supported largely 
as a scrivener "in writing petty things." Little is known of him; 
but it is certain that his legal knowledge was of value in the 
Colony, for it was at his suggestion that a law was passed in 
1639, by which it was ordered, that in order that the records 
should "bee of good use for president to posterity, 
every judgment 1 with all the evidence bee recorded in a book, 
to bee kept to posterity."(i) 

In 1639, his habits brought him into such trouble with the 
authorities, that at a Quarter Court in September, it was or- 
dered, that ''Mr. Thomas Lechford for going to the Jewry and 
pleading with them out of court is debarred from pleading any 
main cause hereafter unless his own and admonished not to pre- 
sume to meddle beyond what he shall be called to by the court." 
In 1640, he was "convented" before the Quarter Court, and, ac- 
cording to the record, "acknowledged he had overshot himself, 
and was sorry for it, promised to attend to his calling, and not 
to meddle with controversies, and was dismissed." In 1642, after 
his return to England, he published his Plaine Dealing or News 
from New England, from which it appears that his trouble with 
the courts was due to the fact that he tried to set up the Common 
Law, while the Puritan courts cared nothing at all for the Com- 
mon Law, but were trying to set up, especially in criminal mat- 
ters, the Mosaic Law. (2) The foreman, he wrote, gave the 
charge to the grand juries, "under the heads of the ten command- 
ments," and this was his warning: 

I fear it is not a little degree of pride and dangerous im- 
providence to slight all former laws of the church and state, 
cases of experience and precedents, to hammer out new, accord- 
ing to several exigencies, upon pretence that the Word of God 
is sufficient to rule us. 

It has been said that it was because of their experience with 
Lechford that the colonists adopted Article No. 26 of the Body 
of Liberties, providing that, "Every man that findeth himself 
unfit to plead his own cause in any court shall have the liberty 
to employ any man against whom the court doth not except to 

(1) Mass. Colony Records, Vol. I, p. 275. To him therefore is owed 
the Records of the Court of Assistants, (published first in print in Massa- 
chusetts in 1901). 

(2) The First Lawyer in Boston, Amer. Law Rev. Vol. XIX. See also 
Mass. Col. Rec., Vol. I., p. 270. 



17TH CENTURY LAWYERS. 15 

lielp him, provided he give him no fee or reward for his pains." 
This statute remained in force, however, only a few years. 

Forty years passed on after Lechford's disgusted return to 
London, and still no educated lawyer appeared in Massachusetts. 
There were, however, attorneys of some kind, as they are men- 
tioned in the records of the General Court in 1649, and else- 
where. Little, however, is known of them, and they were doubt- 
less what Governor Winthrop would call, "mean men," of but 
little or no legal education. They appeared, probably by special 
powers, and by judicial requisition. ( I ) 

In 1654, an act was passed prohibiting every person who was 
a "usual or common attorney in any Inferior Court" from sitting 
as a deputy in the General Court 5(2) and in 1656, an act was 
passed, providing that : 



(1) See Address to Worcester County Bar, October 2, 1829, by Joseph 
Willard. Thus in 1652, in Middlesex, Mr. Coggan appeared as attorney 
to Stephen Day, the first printer : in 1654, in the case of Ridgway against 
Jordan, the defendant appeared by his attorney, Amos Richardson : and 
in 1656, in the case of John Glover against Henry Dunster, who had been 
president of Harvard College, Edmund Goffe and Thomas Danforth ap- 
peared for the plaintiff. This Amos Richardson was a tailor, and Cog- 
gan (John) was in the mercantile business and kept the first shop in 
Boston. Goffe, then an old man, was for several years the representative 
from Cambridge, and Danforth also; and the latter, besides, filled the 
office of assistant and deputy governor; but neither of them was of the 
legal profession. 

(2) This provision of law is strangely suggestive of the famous "Dunces' 
Parliament" held in 1404 at the order of Henry IV, and de- 
scribed by Sir Edward Coke as follows: "At a parliament holden at 
Coventry Anno 6 H 4 the parliament was summoned by writ and by colour 
of the said ordinance it was forbidden that no lawyer should be chosen 
knight, citizen, or burgess, by reason whereof this parliament was fruitless 
and never a good law made thereat, and therefore called indoctum parlia- 
mentum or lack learning parliament, and seeing these writs were against 
law, lawyers ever since (for the great and good service of the Common- 
wealth) have been eligible; for as it hath been said the writs of parlia- 
ment cannot be altered without an act of parliament ; and albeit the pro- 
hibitory clause had been inserted in the writ, yet being against law, 
lawyers were of right eligible and might have been elected knights, cit- 
izens, or burgesses in that parliament of 6 Hen 4." 

And Sir Bulstrode Whitelock in the reign of Charles II in a book enti- 
tled Notes on King's Writ for choosing members of Parliament, described 
this parliament as follows: "In 5 H 4 the King being in great want of 
money and fearing that if the lawyers were parliament men they would 
oppose his excessive demands and hinder his illegal purposes (according 
to their knowledge and learning in the lawes and publique affayres) ; to 
prevent this the King issued forth writs of summons with a clause of 
'nolumus' to this effect: 'we will not that you or any other sherife of 
our kingdome or any other man of lawe by any means be chosen.' This 
parliament was held 6 Hen. 4 and was called the lacke-learning parlia- 
ment; either (saith our historian) for the unlearnedness of the persons 
or for their malice to learned men. It is stiled by Sir Thomas Walsing- 



16 HARVARD LAW SCHOOL. 

This court taking into consideration the great charge resting 
upon the colony by reason of the many and tedious discourses 
and pleadings in courts, both of plaintiff and defendant, as also 
the readiness of many to prosecute suits in law for small mat- 
ters : it is therefore ordered by this court and the authority 
thereof that when any plaintiff or defendant shall plead by him- 
self or his attorney for a longer time than one hour, the party 
that is sentenced or condemned shall pay twenty shillings for 
every hour so pleading more than the common fees appointed by 
the court for the entrance of actions to be added to the execu- 
tion for the use of the country. 

It was not until 1647 that any English law books were to be 
found in the Colony, when the Governor and Assistants ordered 
the importation of two copies each of Sir Edward Coke on Little- 
ton; the Books of Entries; Sir Edward Coke on Magna Charta; 
the Nezv Terms of Law; Dalton's Justices of the Peace; Sir Ed- 
ward Coke's Reports, "to the end that we may have better 
light for making and proceeding about laws." And in 1650, 
it was ordered, that "whereas this Commonwealth is much defect- 
ive for want of maritime affairs and for as much as there are 
already many good laws made and published by our own land 
and the French Nation and other kingdoms and commonwealths, 
the said laws printed and published in a book called 
Lex Mercatoria shall be perused and duly considered and such 
of them as are approved by this court shall be declared and pub- 
lished to be in force in this jurisdiction." 

In 1684, the Colony itself began to feel the need of lawyers ; 
as it found itself summoned into the court of King's Bench at 
Westminster, and its own legal rights in gravest peril. For 
while its charter of 1628, allowed the Massachusetts Bay Colony 
to make laws and ordinances, "so as such laws and ordinances 
be not contrary or repugnant to the laws and statutes of this 
our realm of England." the colonists, having more regard for 
the laws of God than for those of the King, had not proceeded 
in very strict compliance with it. In 1665, the English Royal 



ham in his Margent 'the parliament of unlearned men,' and from them, 
thus packed, the king (saith our author) obtained a grant of an unusual 
taxe and to the people 'full of trouble and very grievous' They who will 
have a 'nolumus' of learned senators must be contented with a Volumus' 
of uncouth lawes which I hope will never be the fate of England." 

See New York Bar Assn. Proc. Vol. XIII. 

James I issued a proclamation to voters for members of Parliament 
directing them "not to choose curious and wrangling lawyers who seek 
reputation by stirring needless questions." See Green Bag, Vol. V (1893). 



17TH CENTURY LAWYERS. 17 

Commissioners, on examination of the Colony statute books, 
reported to the General Court 26 criticisms or censures upon the 
laws. The General Court refused to yield in most particulars, 
and as a result, there were several years of constant conflict be- 
tween it and the Crown authorities in England. 

In June, 1683, a writ of quo warranto was issued from the 
Court of King's Bench to oust the holders of the charter. Mas- 
sachusetts, having no lawyer of distinction within its own bounds, 
retained Mr. Robert Humphreys of London, a barrister of the 
Inner Temple, to interpose delay. The writ, being 1 abandoned 
later for technicalities, a writ of scire facias was issued out of 
the High Court of Chancery on Jan. 18, 1684, and judgment was 
entered by default, June 21, 1684, by Lord Keeper Francis 
North, Lord Guilford, whereby the charter of 1628 was declared 
forfeited, because of usurpations by the Colony. (i) With the 
forfeiture of the charter, all the old laws of the Colony were 
annulled; (2) all its courts disappeared; and a legal chaos seemed 
existent. 

On July 26, 1686, a new court, the Superior Court, was cre- 
ated under the new Governor, Sir Edmund Andros, composed of 
a majority of the councillors. Three judges were appointed, no 
one of whom was a lawyer William Stoughton Chief Justice, 
John Richardson and Simon Lynde. Benjamin Bullivant, a phy- 
sician and apothecary, was appointed Attorney General a man 
of "considerable eloquence and knowledge of laws." 

At the same time, a table of attorney's fees was established, 
and attorneys were obliged, upon admission to the Bar, to take 
oath, not only that they would not charge larger fees than those 
established by law, but that they would be "contented with such 
fees" as were allowed by the Council, or by the judges of the Su- 
perior Court. 

Giles Masters, Capt. Nathaniel Thomas, Anthony Checkley, a 
merchant and military man, Christopher Webb, a merchant, and 
John Watson, a merchant, were admitted and sworn as at- 
torneys. (3) 



(1) For the best account of these legal proceedings see Edivard Ran- 
dolph in the Publications of the. Prince Society. It may be noted that one 
of these usurpations alleged was the chartering of Harvard College. 

(2) See Parsons C. J. in Storer r. Freeman, 6 Mass., 438, (1810) ; 
and Shaw C. J. in Commonwealth v. Algcr. 7 Cush 53. 

(3) Of Watson, John Dunton an English bookseller in Boston in 1686, 
in his Life and Error, speaks as "formerly a merchant in London, but not 

2 



i8 HARVARD LAW SCHOOL. 

At this time, Randolph, Secretary for Sir Edmund Andros dur- 
ing his tyrannical reign as Royal Governor, wrote to a corre- 
spondent in England, Jan. 24, 1689: 

I have wrote you the want we have of two, or three, honest 
attorneys, (if any such thing in nature.) We have but two; one 
is West's creature, came with him from New York, and drives 
all before him. He also takes extravagant fees, and for want 
of more, the country cannot avoid coming to him so that we 
had better be quite without them than not to have more. I have 
wrote Mr. Blackthwaite the great necessity of judges from Eng- 
land. 

But the necessity of procuring judges and lawyers from Eng- 
land was soon to pass away. 

For in 1686, Benjamin Lynde graduated from Harvard Col- 
lege, and "was admitted," his diary says, "for the study of the 
law (as my father had advised) into the Honorable Society of 
the Middle Temple as by the admission of October 18, 1692." 
From Harvard thus appeared in history the first American Bar- 
rister and later the first legally educated judge.(i) 

A new royal charter for Massachusetts was granted by King 
William in 1691 ; and with it began a new era for the law for 
that charter "effected as perfect and thorough a revolution as 
ever was produced by a similar act in any state or nation ; . 
by making freehold and property, instead of church membership, 
the qualification of the right of electing and being elected to 
office, religion became no longer the end and object of civil gov- 
ernment." (2) 

The courts became a separate and distinct institution from the 
magistrates. The judges, however, held their commissions at 
the King's pleasure, and were chosen by the royal governors, 
still largely influenced by the clergy, who preferred men with 
no legal training. 

In 1696, an act was passed, approved by the King in 1699, 

thriving there he left the Exchange for Westminster Hall, and in Boston 
has become as dextrous at splitting of causes as if he had been bred to it. 
He is full of fancy, and knows the quirks of the law : But, to do him 
justice, he proves as honest as the best lawyer of them all." 

(1) Benjamin Lynde was made Judge of the Superior Court in Massa- 
chusetts in 1712 and Chief Justice in 1728. 

On the occasion of publishing Judge Lynde's commission, Judge Sewall, 
in an address to the jury, remarked, "that they would hereafter have the 
benefit of Inns of Court education, superadded to that of Harvard Col- 
lege." 

(2) History of Harvard University, by Josiah Quincy, Vol. I, p. 55. 



17TH CENTURY LAWYERS. 19 

which established a Superior Court of Judicature and inferior 
courts ; at the same time, forms of writs were directed, and the 
courts were empowered to make rules for the regulation of prac- 
tice. No one of the judges appointed, however, was a lawyer. 

A similar condition prevailed in the Court of Special Oyer and 
Terminer, which was appointed in 1692 to try the witchcraft 
cases. Of this court, Chief Justice William Stoughton and 
Judge Samuel Sewall were educated for the ministry, Judges 
Nathaniel Saltonstall and Peter Sergeant were gentlemen without 
a profession, Judges Wait Winthrop and Corwin, and Anthony 
Checkley, the Attorney General, were merchants or military men. 
It may be noted however that this absence of legal training was 
not confined, to the Colonies, for several of the Lord Chief Jus- 
tices of England in this Century were men of little education at the 
bar; and of Sir John Kelynge, who was at the head of the King's 
Bench under Charles II., it was said, that "however fit he might 
have been to charge the Roundheads under Prince Rupert, he 
was very unfit to charge a jury in Westminster Hall."(i) And 
while the witchcraft court has been criticised for its reckless 
disregard of rules of evidence, and also for condemning the de- 
fendants unheard, it is to be remembered that no defendant at 
this time, even in England, was allowed to have counsel to plead 
for him in a criminal trial for felony or treason. It was not 
until 1696 (7-8 William III., c. 3.), that this privilege was 
granted to persons accused of treason, and not until 1836 (6-7 
William IV., c. 114), in cases of felony. It is to be noted also 
that the modern forms of trial had not then been very long 
established, even in England; for Sir Nicholas Throckmorton's 
case, in 1557 (only one hundred and forty years previous), is 
the first trial reported in State Trials which was conducted sub- 
stantially in accordance with the forms familiar at the present 
day. (2) 

(1) An interesting defence of the legal ability of this court is made 
by Abner E. Goodell in a paper on Witch Trials in Massachusetts, Mass. 
Hist. Soc. Proc. Vol. XX. (1883) in which he says: "The regret which 
some, in consequence of the representations of late writers upon the 
witch trials, may have been led to feel, that those trials had not been 
conducted by lawyers, is not warranted by the disclosure of the records 
of the tribunals of England or her colonies if it springs from the belief 
that a more humane and rational course of procedure' might, in that 

case, have been expected Lawyers and laymen, as well as 

clergymen, were equally under the influence of the superstitious terrors 
of that day of darkness and delusion." 

(2) See General View of the Criminal Law of England, by Sir James 
Fitzjames Stephen (1863). 



20 HARVARD LAW SCHOOL. 

CONNECTICUT. 

The condition of the courts and of the legal profession ex- 
isting in Massachusetts in the I7th Century was practically the 
same in Connecticut. 

A few of the leaders in its settlement in 1637 were men 
educated in the law Roger Ludlow, an Oxford graduate, a 
student in the Inner Temple in 1612, a member of the Court 
of Assistants in Massachusetts ; Governor John Haynes, a man 
"very learned in the laws of England" ; and Governor John Win- 
throp the younger, a barrister of the Inner Temple in 1624. But 
with these exceptions there are no records of the existence of 
any trained lawyers in Connecticut for a century. 

The first American written constitution was prepared by Lud- 
low in 1639; an d in 1650, he drafted at the request of the General 
Assembly a Body of Lawes in 77 sections, 14 of which were 
taken from the Massachusetts Body of Liberties, the rest being 
the fruit of his own learning. This code, which showed great 
ability, originality and research, became the foundation of all law 
in Connecticut. 

For ninety years, there was in Connecticut no court separate 
from the Magistrates. At first, the General Court or Assembly 
sat as a High Court. It consisted of the Governor, Deputy Gov- 
ernors, the twelve Assistants (or Councillors) elected at large, 
and the Representatives. After 1665, the Governor, Deputy Gov- 
ernor, and, at least six of the twelve Assistants exercised all the 
judicial powers of the General Court, and were called the Court 
of Assistants. It was not until 1710 that a separate Superior 
Court was constituted, with a Chief Justice and four justices 
(usually elected from the Assistants). The General Assembly 
still continued as a final Court of Appeal. (i) 

As in Massachusetts, practically none of the judges were trained 
lawyers the natural result of the system of framing the courts. 

There was no printed revision of the laws until 1702; and the 
printing of the laws annually in pamphlet form did not begin until 
1727, the custom having previously been to send a manuscript 
copy to each town. 

There was little pleading of any kind in law suits, and no 
acts were passed prescribing forms, until 1709, 1720 and 1731. 

(i) See the famous case of Winthrop v. Lechmere, in which the King 
in Council in 1728 reversed the Connecticut court's decisions. 



17TH CENTURY LAWYERS. 21 

Under all these circumstances, the Bar developed even later 
than in Massachusetts. 

In 1667, the General Court prohibited "all persons from plead- 
ing as attorneys in behalf of any person that is charged or prose- 
cuted for delinquency (except he speak directly to matter of law 
and with leave from the authority present)" under fine of ten 
shilling's, or the stocks for one hour. 

In 1708, an act was passed, regulating the admissions of at- 
torneys to practise, and providing that: 

No person except in his own case, shall be admitted 
to make any plea at the Bar without being first approved 
of by the court before whom the plea is to be made, nor 
until he shall take in said court the following oath, viz. : 
"You shall do no falsehood, nor consent to any being done 
in the court, and if you know of any to be done, you shall give 
knowledge thereof to the justices of the court, or some of them, 
that it may be reformed. You shall not wittingly and willingly 
promote, sue or procure to be sued, any false or unlawful suit, 
nor give aid or consent to the same. You shall delay no man for 
lucre or malice, but you shall use yourself in the office of an 
attorney within the court according to the best of your learning 
and discretion, and with all good fidelity, as well to the court as 
to the client. So help you God."(i) 

This law required authority from the. court in each particular 
case ; and no statute providing for the general admission of attor- 
neys existed until 1750. 

In 1725, an act was passed, taxing all persons practising as at- 
torneys in the Colony, "for their faculty," by which those who 
were "the least practitioners" were to be set in the list for 50 
pounds, and others "according to their practise." 

In 1730, the number of attorneys was limited as follows : 

Whereas many persons of late have taken upon themselves 
to be attorneys at the Bar so that quarrels and lawsuits are mul- 
tiplied and the King's good subjects disturbed; to the end that 
said mischief may be prevented and only proper persons allowed 
to plead at the Bar, Ordered : that there shall be allowed in the 
colony n attorneys and no more .... which attorneys 
shall be nominated and appointed from time to time as there shall 
be occasion by the county courts. 



(i) This form of oath is substantially the same as that in use in 
Massachusetts and was derived from that in use in England in 1649. 



22 HARVARD LAW SCHOOL. 

And in actions as to land titles involving ten pounds or less, a 
party was allowed one attorney to plead, and over ten pounds, two 
attorneys. 

It is not surprising, therefore, that in the statistics of the Con- 
necticut Bar, prepared by the noted Judge Thomas Day, there 
appear the names of no lawyers practising in the I7th Century. 

RHODE ISLAND. 

In Rhode Island, before its first charter, the General Court 
assumed all the judicial powers. Under the charter of 1647, the 
ruling town magistrates composed the courts. Under the royal 
charter of 1663, and up to 1729, the Governor, Deputy Governor 
and his ten (elected) Assistants, exercised the judicial powers. 

It was not until 1729 that criminal and civil courts were es- 
tablished separate from the executive magistrates, and not until 
1747 that the judiciary was recognized by act of the General 
Assembly, as a separate branch of the Colonial government. The 
Court so formed, consisted of a Chief Justice and "four judi- 
cious and skilful persons," chosen by the General Assembly.(i) 

At no time was knowledge of the law considered essential to 
the members of the Court; and the judge, probably because of his 
ignorance, did not even charge the jury. (2) 

In 1699, tne Earl of Bellomont. in his report to the Lords of 
Trade, said : 

Thus courts of justice are held by the governor and assistants 
who sit as judges therein, more for constituting the court than 
for searching out the right of the causes coming before them or 
delivering their opinion on points of law (whereof it is said they 
know very little). They give no directions to the jury nor sum up 
the evidences to them, pointing out the issue which they are to 
try. Their proceedings are very unmethodical, no ways agree- 
able to the course and practice of the courts in England and many 
times arbitrary and contrary to the laws of the place ; as is af- 
firmed by the attorneys at law that have sometimes practiced in 
their court. 

A full code of law was adopted in 1647, embodying an elaborate 
classification of crimes, and providing that "in all other matters 
not forbidden by the code, all men may walk as their conscience 
persuades them." 

(1) Judicial System in Rhode Island, by Amasa M. Eaton, Yale 
Laiv Journal Vol. XIV. 

(2) This custom remained unchanged in Rhode Island until 1833. 



17TH CENTURY LAWYERS. 23 

It appears that in this same year a text-book of maritime law 
was known in the Colony, for the Assembly resolved in 1647, that 
the Laws of Oleron should be in force for the benefit of seamen. ( I ) 

As early as 1680, and again in 1686, a committee was ap- 
pointed to make a digest of the laws, ''that they may be putt in 
print ;" but the earliest known printed copy of laws was made in 
1719. 

The first Record Book of the courts is still preserved, covering 
the years 1671-1685, from which it appears, that civil cases did 
not average over fifteen a year, and were almost exclusively 
in debt, trespass, detainer and slander. Of the early Bar, little or 
nothing is known. 

The earliest statutory reference to lawyers was in 1668-9, when 
it was enacted, that any person who was indicted might employ 
an attorney to plead in his behalf. 

In 1718, an act was passed, limiting the number of lawyers 
to be permitted to argue in any case to two, one of them to be a 
free holder of the Colony. In 1729, lawyers were forbidden to 
be deputies, their presence in the assembly sitting as a court of 
Appeal being "found to be of ill consequence." This act was 
repealed, however, in 1731. 

The office of Attorney General was created in 1650, by an act 
which quaintly declared that "because envy, the cut throat of all 
prosperitie will not fail to gallop with its full career, let the sayd 
attorney be faithfully engaged and authorized and encouraged." 
Henry Bull, who was born in 1689, and elected Attorney Gen- 
eral in 1721, tells an anecdote of himself, which seems to fairly 
illustrate the conditions of early law practice : 

When he made up his mind to practice law he went into 
the garden to exercise his talents in addressing the court and 
jury. He selected five cabbages in one row for judges, and 
twelve in another row for jurors; after trying his hand thus 
awhile, he went boldly into court and took upon himself the 
duties of an advocate, and a little observation and experience there 
convinced him that the same cabbages were in the court house 
which he thought he had left in the garden, five in one row 
and twelve in another. 

MAINE AND NEW HAMPSHIRE. 

In Maine, Thomas Gorges, the head of the Colonial Govern- 
ment, was an English barrister of the Inns of Court a practising 



(i) Kent's Com., Vol. Ill, p. 13, note. 



24 HARVARD LAW SCHOOL. 

lawyer, and the only one during the whole first century of the 
Colony. 

The General Court at first tried all criminal and civil cases ; 
later it established two inferior courts which existed until 1692, 
when the Colony was incorporated into the royal Province of 
Massachusetts, and came under its judicial system. 

It was not until 1720 that there was a resident lawyer prac- 
tising in the Maine courts Noah Emery of Kittery, brought up 
as a cooper, but who later studied law. 

In New Hampshire, as in Massachusetts and the other Colo- 
nies, the courts were for a long time composed, largely, if not 
wholly, of laymen. Richard Martyn, Chief Justice in 1693-94, 
was a merchant. In 1699, when a separate Superior Court of 
Judicature was established (consisting of John Hinckes, Chief 
Justice, Peter Coffin, John Gerrish and John Plaisted), all the 
judges were laymen. 

The earliest, and practically the only, trained lawyer of the 
1 7th Century in the Colony, was John Pickering, of Portsmouth. 
In 1696, Charles Story, an English barrister, was sent to the Col- 
ony as Judge of Admiralty. 

THE REASONS FOR THE SCARCITY OF LAWYERS. 

A close study of legal conditions in the early history of the 
New England Colonies forces one to the conclusion that the lack 
of educated lawyers in the I7th Century in those Colonies was 
largely due to the absence of respect for the English Common 
Law. And one is inevitably driven to the further conclusion that 
the courts of the early igth Century were far from historically 
accurate in the theory which they framed as to the existence of 
Common Law doctrines in this country, a theory which was 
stated by Chief Justice Parsons in 1807 as follows : 

Our ancestors when they came into this new world claimed 
the common law as their birthright and brought it with them, 
except such parts as were judged inapplicable to their new state 
and condition the common law of their native country as it was 
amended or altered by English statutes in force at the time of 
their immigration. ( I ) 

(i) Parsons C. J. in Commonwealth v Knowlton, 2 Mass., p. 354 (1807.) 
See Shaw, C. J. in Young v. Emery, 16 Pick. p. no (1833). 
And see Judge Story in his Commentaries on the Constitution and in 
Van Ness v. Packard, 2 Peters 144 (1829). 



17TH CENTURY LAWYERS. 25 

As has been seen, it was not historically true that either in 
Massachusetts, Connecticut or Rhode Island, the colonists of the 
i/th Century brought with them the English Common Law, or 
governed themselves by it. So far from being proud of it "as 
their birthright," they were in fact decidedly anxious to escape 
from it and from the ideas connected with it in their mind. 

The Common Law was neither popular nor a source of pride 
at this time, even in England. (i) It was a period when Sir 
Edward Coke had been removed as Chief Justice of King's 
Bench by James I, in 1616. The judges held office only at the 
King's pleasure. The Star Chamber Court had flourished under 
Charles I. The Chancellors were endeavoring to mitigate some 
of the harshness and irrationality and technicality of the Common 
Law courts. The old feudal tenures were extant, with all their 
follies and burdens. 

The fact is, that the English Common Law, 1620-1700, was 
in force in New England only so far as it was specifically adopted 
by statute or so far as the colonists, by custom, had assented to 
its binding force. 

Thus, in a case in Massachusetts, as late as 1687, the defendant 
pleaded that the Magna Charta of England and the statute law, 
"secure the subjects' properties and estates .... To which 
was replied by one of the judges, the rest by silence assenting, 
'We must not think the laws of England follow us to the ends of 
the earth or whither we went.' "(2) 

Chief Justice Atwood, who visited Boston in 1700, in his re- 
port to the Lords of Trade, states that he had "publicly exposed 
the argument of one of the Boston clergy that they were not 
bound in conscience to obey the laws of England;" (3) and he 



(1) Signs of the dissatisfaction with the state of the law in England 
may be seen from the flood of pamphlets demanding its reform, such as; 
Reformation Proceedings at Law, by Thomas Felds in 1645; Survey of 
the English La-ivs, their Unsonndness and Corruption Discovered, by F. 
W. in 1652; England's Balme, or Proposals by way of Grievance and 
Remedy towards the Regulation of Law and Better Administration of 
Justice, by William Sheppard in 1657: Certain Proposals for Regulating 
the Law, by John Shepheard in 1651; Perspicuous Compendium of Sev- 
eral Irregularities and Abuses in Present Practice of Common Laws of 
England, by D. W., in 1656; Warr's The Corruption and Deficiency of the 
Laws of England; Jones' An Experimental Essay touching the reforma- 
tion of the Laws of England. 

(2) Judicial History of Massachusetts, by Emory Washburn, p. 106. 

(3) Documents relative to Colonial History of New York, Vol. IV. 
p. 929. 



26 HARVARD LAW SCHOOL. 

notes that the methods of the courts were "abhorent from the 
Laws of England and all other nations." 

John Adams in his Novanglns said, even in 1774: 

How then do we New Englanders derive our laws. I say not 
from Parliament, not from the common law ; but from the law of 
nature and the compact made with the King in our charter. Our 
ancestors were entitled to the common law of England when 
they emigrated ; that is to say to as much of it as they pleased to 
adopt and no more. They were not bound or obliged to submit 
to it unless they chose. ( i ) 

As already seen, Connecticut was extremely independent of 
the Common Law ; and as Robert Quary reported to the Board of 
Trade in England, "the people are of a very turbulent, factious 
and uneasy temper. I cannot give their character better than by 
telling your Lordships that they have made a body of laws for 
their government which are printed ; the first of which is that 
no law of England shall be in force in their government till made 
so by act of their own." (2) In the famous case of Winthrop v. 
Lechmere, in 1728. the Colony's agent in London was instructed 
to argue that English Common Law could be binding beyond the 
sea, only in case k had been accepted by the colonists' own choice. 
"The common law always hath its limits environ'd by the sea. "(3) 

In fact, Connecticut never adopted the Common Law, even by 
statute. Its recognition at all grew up through usage and custom 
only, and was coincident with the first professional education of 
lawyers and judges. As the Bar grew to be composed of men 
familiar with the law of England, and its reported cases and 
commentaries, the legal character of the bench improved, and 
the rules of Common Law gradually became, by judicial applica- 
tion, the law of Connecticut. But Judge Jesse Root, in the 



(1) Adams' Life and Works, Vol. IV., p. 122. 

Thomas Jefferson said in a letter to Attorney General Rodney Sept. 25, 
1810, speaking of Levi Lincoln of Massachusetts as a possible successor 
to Gushing as Chief Justice of the United States Supreme Court: "He 
is not thought to be an able common lawyer, but there is not and never 
was an able one in the New England States. Their system is sui generis, 
in which the common law is little attended to." 

See Jefferson's Complete Works, Vol. V., p. 546. As to Common Law in 
Massachusetts Colony, see Tucker's Blackstone Appendix, Vol. I., p-. 
397 et seq. 

(2) Quoted in The Connecticut Intestacy Law, by Charles M. Andrews, 
Yale La~cv Journal, Vol. III. 

(3) Governor Talcoti Papers, Vol. II. appendix. These instructions 
were drawn up by John Read, afterwards the leader of the Bar in Boston,, 
in the early i8th Century. 



17TH CENTURY LAWYERS. 27 

Preface to the fi/rst volume of his Reports, as late as 1798, de- 
nied that English law had ever been applicable, per se : 

Our ancestors who emigrated from England to America were 
possessed of the knowledge of the laws and jurisprudence of that 
country ; but were free from any obligations of subjection to 
them. The laws of England had no authority over them to bind 
their persons, nor were they in any measure applicable to their 
condition and circumstances here .... In every respect 
their laws were inapplicable to an infant country or state, where 
the government was in the people, and which had virtue for its 
principle and the public good for its object and end; where the 
tenure of land was free and absolute, the objects of trade few, 
and the commission of crimes rare, (i) 

In Rhode Island, it was not until 1770 that by statute the Com- 
mon Law was formally adopted, as follows : 

In all actions, matters, causes, and things whatsoever where no 
particular law of the colony is made to decide and determine the 
same, then in all such cases the law of England shall be put in 
force to issue, determine and decide the same, any usage, custom 
or law to the contrary notwithstanding. 

The real fact is, that during these years, 1620-1700, the colo- 
nists were making a Common Law for themselves ; and their 
usages and customs, and the expedients to which they were forced, 
in order to adapt their rules of life to the surroundings and the 
time, gradually hardened into positive rules of law. (2) 

(1) See Zephaniah Swift's System of Laivs of Connecticut; Peters 
History of Connecticut. 

(2) See Parsons, C. J. in Com. v. Knowlton, 2 Mass., p. 534 (1805). 
Shaw, C. J., in Com. v. Chapman, 13 Mete., p. 68 (1847). 

In England, in 1600, Lord Coke was deriving Common Law from usages 
and precedents three, four, and five hundred years old ; but in Massachu- 
setts in 1810, customs only one hundred and fifty years old had crystal- 
lized into a part of its Common Law. 

For example, a practice of the court in early days, of proceeding with 
the suit against one debtor, when the other lived out of the Colony "a 
practice originated from necessity" in the early seventeenth century, was 
held in 1809 a Common Law rule. (Tappan v. Bruen, 15 Mass. 19). 

In Campbell v. Johnson, n Mass. p. 187 (1814), it was held that "Imme- 
morial usage, (i. e. usage since 1620), has a force equally binding as 
statutes;" and see Parker, C. J., in Pntcr v. Hall, 3 Pick. p. 373 (1825). 
So "the immemorial usage of Massachusetts, founded on necessity," of 
a wife conveying her dower by joining in the deed, had become Common 
Law in Massachusetts early in the eighteenth century. "The celebrated 
Mr. Read, the first lawyer in his time, resolved this usage into New 
England Common Law," said Parsons, C. J., in Foivler v. Shearer, 7 
Mass. 21. 

So the statute as to low water mark ownership of Massachusetts Bay 
Colony, being a usage and practice all over Massachusetts, had become 
a common law rule in 1832; see Shaw, C. L, in Barker t: Bates, 13 
Pick. 258. 



28 HARVARD LAW SCHOOL. 

An interesting commentary on this growth of an American 
Common Law is to be found in the diary of Ezra Stiles, Presi- 
dent of Yale College, (i) 

Jan. 6, 1773 Dined with Judge (Peter) Oliver (Chief 
Justice of Massachusetts) and spent the afternoon to- 
gether. We discoursed on the extending of the English Law to 
America, whether Statute or Common. He said all the English 
statutes before the Colonies had Existence were to be extended 
here (a singular opinion) all made since with extending 
clauses reached us those made without, etc., did not extend here. 
This I see is Court Law. He considered the Descent of Inherit- 
ance in Massachusetts as being neither according to England in 
general or Co. of Kent, but Mosaic. He said by Common Law 
the Estates of Felons went to the King, in Kent to the children, 
in New England to the children ; so that the Common Law he 
said would not apply to New England in this Case. In England 
and Massachusetts no Quaker evidence by affirmation can con- 
vict capitally Judge (Frederick) Smyth (Chief Justice of New 
Jersey) told Judge Oliver that when he came to Jersies he ob- 
jected this but they all cried out their usage to admit Quaker 
Testimony in capital cases and that he was obliged to give way 
to it, tho' different from the Laws of England. We also discussed 
on Slavery of Negroes in Virginia, etc. ; that of necessity the 
American Public Law must differ and vary from the Public Law 
of England. 

The absence of lawyers in the I7th Century is, therefore, easily 
understood, when once the conditions described above are appre- 
ciated. When English precedents were not followed or used as a 
guide in the courts, and the courts were composed of clergymen 
and merchants, of Governors and their Deputies or Assistants, of 
politicians appointed or elected, rather than of trained lawyers, 
there was no real need or scope for men trained in English law ; 
and no real lawyers appeared until the call arose for them. 

This call came early in the i8th Century. Prior to 1700, the 
law had been a layman's law, a popular equitable system, which 
worked well enough under the simple conditions of the times. 
As the practice of the law became more extended and disciplined 
however, and as contingencies unprovided for by statute con- 
stantly arose, Judges grew more and more into the habit of bor- 
rowing from the provisions of the English Common Law. The 
precedents springing from local customs became more numerous 



(i) Literary Diary of Ezra Stiles, Vol. I., p. 33* (1901). 



17TH CENTURY LAWYERS. 29 

and complicated; and by 1720, a regular trained Bar began to 
arise in New England. 

And while it was the subordination of the Common Law to the 
Law of God and of the clergy which had been largely account- 
able for the non-existence of lawyers in the Colonies in the I7th 
Century, it was on the other hand through the advent of the 
American lawyer that the English Common Law was later de- 
veloped in the Colonial courts. 

NOTE. 

For authorities in general, see: 

Courts of Justice in the Province of Massachusetts Bay, 1630- 
84 Amer. Law Rev., Vol. XXXIV, 1902. 

Judicial Action by the Provincial Legislature of Mass. Bay, 
Columbia Law Review, Vol. II, 1902. 

Local Law in Massachusetts and Connecticut, by W. C. Fowler. 

The Colonial Laws of Massachusetts, by W. H. Whitmore 
(1890). 

Judicial History of Massachusetts, by Emory Washburn (1840). 

Plymouth Colony Laws. 

Massachusetts Colonial Records. 

Records of the Courts of Assistants, edited by John Noble 
(1901). 

Plaine Dealing, or News from New England, by Thomas Lech- 
ford (1642). 

Emancipation of Massachusetts, by Brooks Adams (1887). 

History of New England, by John Winthrop. 

History of New England, by John G. Palfrey (1858). 

Address on Origin of the Legal Profession in Massachusetts, 
by William Sullivan (1826). 

Three Episodes of Massachusetts History, by C. F. Adams 
(1892). 

Judicial History of New England, by Conrad Reno (1900). 

History of the Judiciary of Massachusetts, by William T. Davis 
(1900). 

Address to Worcester County Bar, Oct. 2, 1829, by Joseph 
Willard. 

Judicial History of Massachusetts, by Albert Mason, in The 
New England States, (1897). 

Attorneys and their Admission to the Bar in Massachusetts, by 
Hollis R. Bailey (1907). 

Connecticut, Origin of Her Courts and Laws, by William 
Hamersley in The New England States, (1897). 

Judicial History of Rhode Island, by Thomas Durfee in The 
New England States, (1897). 

History of New Hampshire, by Jeremy Belknap (1792). 

Bench and Bar of New Hampshire, by C. H. Bell (1894). 



30 HARVARD LAW SCHOOL. 

History of Rhode Island, by S. G. Arnold (1859). 

The Judicial System in Rhode Island, by Amasa M. Eaton, 
Yale Law Journal, Vol. XIV. 

The Law, the Courts and Lawyers of Maine, by William Willis 
(1863). 

Roger Ludlow, by John M.Taylor (1900). 

Judicial and Civil History of Connecticut, by Dwight Loomis 
and G. E. Calhoun (1895). 

English Common Law in the Early American Colonies, by Paul 
F. Reinsch (1899). 



CHAPTER II. 

ENGLISH LAW, LAWYERS, AND LAW BOOKS AND REPORTS IN THE 

I7TH CENTURY. 

In the year 1692, when the first New England lawyer was 
admitted into the Temple in London, the Common Law, as a 
system to be studied from reported decisions, was only about a 
century old. 

Those cases which are to the modern student almost his ear- 
liest landmarks, were then to be found in reports published only 
a few years before the Pilgrims landed at Plymouth. 

Shelley's case (i Coke 93) had been decided in 1579-1581: 
Thoro good's case (2 Coke 9), on fraud in the execution of a deed, 
in 1582; S lade's case (4 Coke 91), which established the use of 
the action on the case upon assumpsit in place of debt, in 1596; 
Twyne's case (3 Coke 50), on gifts in fraud of creditors, had 
been decided in 1585; Spencer's case (5 Coke 16), in 1583; 
Calye's case (8 Coke 32), on the liability of innkeepers, in 
1584; Lopus v. Chandelor (Cro. Jac. i), the Bezoar Stone case 
on warranties, in 1603; Bumper's case (4 Coke 119), on waiver 
of forfeiture, in 1603; Semayne's case (5 Coke 91), on sheriff's 
liability, in 1605 ; the Six Carpenters case or Vaux v. Newman 
(8 Coke 146), on trespass ab initio, in 1611 ; Sutton Hospital case 
(10 Coke i), on corporations, in 1612; Lamplaugh v. Braithwait 
(Hobart 105), on consideration in assumpsit, in 1616; Manby v. 
Scott (i Lev. 4), on a wife's contract, in 1659. 

While the Common Law on its civil side had begun, by 1620, 
to provide fairly complete and even-handed justice as between 
one private citizen and another, (as the reports of Chief Justice 
Dyer, Chief Justice Anderson and Sergeant Plowden during the 
reign of Queen Elizabeth show)(i), on its criminal side it was 
a source of horror to lovers of liberty and right, throughout the 
1 7th Century. Great judges, as a rule, were hardly possible under 
the arbitrary rule of the Stuarts or of Cromwell ; the State Trials 
were trials only in name, though the complete disregard of the 



(i) The Five Ages of the Bench and Bar of England, by John M. Zane. 



32 HARVARD LAW SCHOOL. 

rules of law and evidence by the justices presiding over them 
resulted in bringing about the new era of the English Common 
Law. 

In 1636, about the time when Connecticut was being settled, 
and a code of laws framed by Ludlow, John Hampden was be- 
ing tried in England for refusing to pay ship money. 

In 1641, the year when Massachusetts had adopted the Body 
of Liberties, occurred the trial for treason of the Earl of Straf- 
ford, and two years later the trial of William Laud, Archbishop 
of Canterbury. 

Eight years later, in 1649, Chief Justice Rolle refused to pre- 
side over a court to try Charles I, and the King was tried be- 
fore Lord President Bradshaw at a Special High Court of Jus- 
tice, his line of defence having been laid out by Sir Mathew Hale. 

In 1660, the regicides were tried for treason at Old Bailey be- 
fore Sir Orlando Bridgman, Chief Baron of the Court of Ex- 
chequer. 

In 1662, the trial of Sir Henry Vane the younger occurred be- 
fore Chief Justice Foster. 

In 1683, came the trial for treason of Lord Russell (the Rye- 
house Plot Case) before Sir Francis Pemberton, Chief Justice 
of Common Pleas, and of Algernon Sydney before the infamous 
Lord Chief Justice Jeffreys. 

In 1685, Lady Alice Lisle had been tried and executed by 
Jeffreys ; and Titus Oates had been tried for perjury and pilloried ; 
in 1688, occurred the trial of the Seven Bishops for libel, before 
Lord Chief Justice Wright. 

Two trials of especial interest to the American Colonies were 
those of William Penn for "tumultuous assembly" in 1670, and 
Capt. William Kidd for murder and piracy in 1701. 

In the midst of these dark times of the law, however, two 
clear lights had shone out in the persons of the great Lord Chief 
Justices Sir Edward Coke and Sir Mathew Hale. The former 
had been deposed by James I, in 1616, before the settlement of 
New England. The latter had been head of the Court of King's 
Bench from 1671 to 1676. He presided in 1665 as Chief Baron 
of the Exchequer at the witch trials in Suffolk, which were 
the prototype of those occurring twenty-seven years later in 



17TH CENTURY ENGLAND. 33 

Salem, Massachusetts ;(i) and in 1676 over the trial of John 
Bun van, the tinker, to the long sentence imposed on whom, the 
world owes Pilgrim's Progress. 

Mathew Hale's services to the development of law during this 
Century were, however, not confined to his opinions from the 
bench. Although Francis Bacon, in 1592, at the age of thirty-one, 
had proposed in the House of Commons a plan to amend and con- 
solidate the whole body of English Law, Hale was the first to 
conceive the opinion that the law of England was capable of be- 
ing reduced to a system and created scientifically. (2) Since 
the reign of Edward I, there had been slight change in the laws 
or in the mode of administering justice in England, and they had 
become quite unsuited to the altered circumstances of the coun- 
try. In 1653, therefore, Hale was made chairman of a committee 
on Law Reform of which Cromwell, Sir Algernon Sydney and 
Sir Anthony Ashley Cooper were members. He drew up a plan 
for legal reforms, including a scheme for the recording of deeds ; 
but it was not adopted, "because," as Sir Edward Ludlow in 
his Memoirs says, "of the opposition of the lawyers who desired 
to possess in their own hands the laws, liberties and estates of 
the nation." Whether or not this was the real reason, it is plain 
that England was not ready for most of these innovations ; and 
though the public registry of deeds had already been adopted in 
some of the American Colonies, this, with many of Hale's other 
suggestions, failed in the more conservative country. To Hale, 
however, was largely due the action of Parliament, in 1649, in 
requiring the use of the English language in law books and pro- 
ceedings, a reform which lasted only until the Restoration of 
Charles II and which was not put permanently in force until 
nearly one hundred years later, in 1733. (3) 



(1) Chandler in his American Criminal Trials says, that "the ac- 
count of the trial of witches in Suffolk was published in 1684. All these 
books were in New England and the conformity between the behaviour 
of Goodwin's children and most of the supposed bewitched at Salem and 
the behaviour of those in England, is so exact as to leave no room to 
doubt the stories had been read by the New England persons themselves 
or had been told to them by others who had read them." 

(2) See Lecture on The System of Lmv, in Life of Nathaniel Chipman, 
by Daniel Chipman (1846). 

(3) Campbell's Lives of the Chief Justices, Vol. II., p. 185. As early 
as 1609 King James had said in a speech when the Revised Version of the 
Bible was nearly ready for publication, "I wish the law written in one 
vulgar language; for now it is an old mixt and corrupt language only 
understood by lawyers." 

3 



34 HARVARD LAW SCHOOL. 

The i/th Century, though not prolific in great lawyers or judges 
until its close, was a period of great changes in the courts of 
England. 

The old special courts for the trial of cases on the Law Mer- 
chant the Staple (or Market) courts, the Courts Prepoudrous 
had disappeared, and such cases had gradually come into the 
Courts of Chancery and the Admiral's Court, and in some in- 
stances into the Common Law Courts, where the law merchant 
was proved, like foreign law, as a question of fact, (i) 

The Court of Star Chamber so inveighed against by the Puri- 
tans and feared by all English subjects had been abolished in 
1641. 

The establishment of the High Court of Chancery as a body 
co-ordinate in power with the Common Law Courts, had been 
finally brought about. For many years the Lord Chancellors, es- 
pecially Thomas Egerton, Lord Ellesmere, had, with the aid of 
Sir Francis Bacon, the King's Attorney General, been waging a 
bitter fight against Chief Justice Coke in behalf of the right of 
the Chancery to issue writs of injunction against the other 
Courts. (2) 

And in 1616, a case in King's Bench, of slight importance in 
its facts, had brought the downfall of Lord Coke and of the ex- 
clusive pretentions of the Courts of Common Law. (3) 

The abolition of the incidents of feudal tenure and the estab- 
lishment of new systems of conveyancing had also thrown more 
and more cases into the Equity Courts through their jurisdiction 
over trusts, mortgages, and specific performance. And with 
the Chancellorship of Sir Heneage Finch, (Lord Nottingham), in 



(1) See What is the Law Merchant, by F. M. Burdick, Columbia Law 
Review, Vol. II. 

(2) See case of Throckmorton v. Finch, 3 Coke Inst, 124; Cro. Jac., 
344. The Expansion of the Common Law, by Sir Frederick Pollock. 

See especially Falstaff on Equity, by Charles E. Phelps a commentary 
on FalstafFs remark in Henry IV., Part I., Act 2, Scene 2. 

(3) The quaint facts were that an agent of the defendant had taken 
one of the plaintiff's witnesses to a tavern, and calling for a pot of sack, 
left the room as soon as the man had raised it to his mouth. When 
the cause came on and the witness was called, the court was informed 
that he could not come and the agent deposed "that he left him in such 
a condition that if he continued in it but for a quarter of an hour, he 
was a dead man." The verdict was for the defendant, and to be re- 
lieved from such a verdict, application was made to the Court of Chancery. 

Johnson's Life of Coke, Vol. I., p. 287 (1845). 



17TH CENTURY ENGLAND. 35 

i673-82,(i) and that of his successor Sir Francis North, (Lord 
Guilford), the modern law of equity began. 

By the end of the i/th Century, the stability of the Common 
Law Courts had also been established ; for, by the Bill of Rights 
of 1688, the judges were no longer to hold office at the King's 
pleasure but "quam diu se bene gesserint." It was no longer 
possible for the King to say, like James II, "I am determined to 
have twelve lawyers for judges who will be all of my mind as to 
this matter;" bringing forth the reply of Chief Justice Jones of 
the Common Pleas, "Your Majesty may find twelve judges of 
your mind, but hardly twelve lawyers. "(2) 

THE LAWYERS. 

For two hundred years after the Norman Conquest, legal pro- 
ceedings had been almost entirely in the hands of the clergy. 
They were the scholars, the students of canon and civil law, 
almost the only class possessing a knowledge of reading. (3) 

The first learned lay lawyers appeared in the reign of King John. 
Gradually the judges were appointed more and more as lawyers 
and less as priests ; and finally, in Henry Ill's reign, the Pope 
forbade his clergy to study temporal law or to sit in lay courts. 
Of the clerical lawyers one of the last, and greatest, was Bracton, 
who died in 1267. (4) 

The Year Books, begun under Edward I, show the legal pro- 
fession in full bloom, most of the cases, however, being tried at 
the bar by the Serjeants. 

In 1292, Edward I ordered that the justices of the Court of 
Common Pleas should decide as to what attorneys and appren- 
tices should be chosen from each county. (5) 

(1) "Emphatically called the Father of Equity." See Story's Equity 
Jurisprudence, Vol. I., p. 46. 

It has been said that Nottingham drew his own portrait when he wrote 
of Hale, "He looked upon equity as a part of the common law and one of 
the grounds of it; and therefore, as near as he could he did always re- 
duce to certain rules and principles, that men might study it as a science 
and not think the administration of it had anything arbitrary about it." 

(2) Campbell's Lives of the Chief Justices, Vol. II., p. 337. 

(3) Legal Profession in England Amer. Law Review, Vol. XIX, 
677. It is curious to find this history reproduced in the early days of 
Massachusetts when the clergy again were the preponderating factor in 
the law. 

(4) See The Golden Age of the Common Law, by John N. Zane, 
Illinois Law Rev. (1907). 

(5) Pollock and Maitland, History of English Law, Vol. I., p. 199. 
The Courts and Admissions to the Bar Harv. Law Rev., Vol. XII. 



36 HARVARD LAW SCHOOL. 

In the Miroir des Justices (written by Andrew Home in 1327 
in the reign of Edward II), it was laid down that: 

Every pleader is to be charged by oath that he will not maintain 
nor defend what is wrong or false to his knowledge, but will 
fight for his client to the utmost of his ability ; thirdly, he to put 
on before the court no false delays ; nor false evidence, nor move 
nor offer any corruptions, deceits, tricks, or false lies, nor consent 
to any such, but truly maintain the right of his client, so that it 
fail not through any folly, negligence, or default in him. 

In 1381, the popular hatred of attorneys was shown in the 
outcry against them in Wat Tyler's rebellion ( I ) , an outcry which 
was reproduced in almost every particular 400 years later, in 
the Shay's rebellion in Massachusetts, in 1787. 

In 1403, the attorneys had increased to 2,000, and by an act in 
that year it was ordered that all attorneys be examined "and 
none admitted but such as were virtuous, learned, and sworn to 
do their duty." 

In 1413, the undersheriffs, clerks, receivers and bailiffs had been 
excluded from practising as attorneys, because "the King's liege 
people dare not pursue or complain of the extortions and of the 
oppressions to them done by the officers or sheriffs." (2) 

In 1606, by statute, none were to be admitted as attorneys in 
the courts except those brought up in the Inns "well practised 
and skilled and of an honest disposition," 

As gradually from the time of King John to Edward I the 
Courts had become localized at Westminster Hall, that "lock and 
key of the common law" as Coke called it, the lawyers gathering 
also in London from all parts of the kingdom, formed there a kind 
of University of their own in certain buildings called "Inns," 
where instruction was given in the principles of English Common 
and statute law exclusively. 

Gradually "Inns of Court" came to signify the four Hon- 



(1) See Shakespeare Henry VI, Part II., Act 4, Scene 2. 

"Dick the Butcher The first thing we do, let's kill all the lawyers. 

Cade Nay, that I mean to do. Is not this a lamentable thing, that 
of the skin of an innocent lamb should be made parchment; that parch- 
ment being scribbled o'er should undo a man. Some say : the bee stings ; 
but I say, tis the bee's wax; for I did but seal once to a thing, and I was 
never mine own man since." 

(2) It is interesting to find this legislation reproduced three hundred 
years later in many of the American Colonies, 1700 to 1750. 



17TH CENTURY ENGLAND. 37 

ourable Societies of Lincoln's Inn, Gray's Inn, The Inner Tem- 
ple, and the Middle Temple. (i.) 

The exact origin of these Inns of Court is unknown; but they 
probably existed in their present form in the reign of Edward 
III in 1327. Henry III had taken them under his special pro- 
tection, and in 1235 prohibited the study of law in any other 
place in London than the Inns of Court. Little satisfactory infor- 
mation however is to be had about them until the time of Henry 
VI (1422-1461) when Sir John Fortescue, the Chancellor, 
sketched them in detail in his De Laudibus Legum Angliae. 

He described them as composed of four large Inns of about 
200 students each, and ten lesser Inns of Chancery having about 
100 students each. The students were chiefly young men of 
birth; and in 1586, the number in the various Inns of Court 
and Chancery was 1703. (2) 

The severance between the two branches of the profession dates 
from an order of the Inns of Court in the reign of Philip and 
Mary, in 1557, as follows: "In all admissions henceforth this 
condition implied that if he that is admitted practice any attorney- 
ship ipso facto be dismissed, and to have liberty to repair to the 
Ions of Chancery whence he came." The only persons entitled and 
admitted to practise in the courts were those who had been 
"called" as barristers by the "benchers" or officers of one of the 
four Inns of Court. Attorneys ( officers of the Common Law 
Courts) and solicitors (officers of the Courts of Chancery) could 
only draw writs and papers and instruct the barristers as to 
the matter in litigation and were generally graduates of the 
Inns of Chancery. Many men famous in English history 
had been connected with the Inns. Lord Bacon had written 
his essays from his "chamber in Graie's Inn" and had ridden 
forth from there in 1617 to be installed as Lord Keeper of the 
Great Seal. Sir Philip Sidney was of Gray's Inn. John Hamp- 



(1) The term "Inn or "Inne" was the Saxon equivalent for the 
French "hostel," signifying, not a public place of entertainment, but the 
private city or town mansion of a person of rank or wealth ; thus, 
"Lincoln's Inn" was the hostel of the Earl of Lincoln and leased to lawyers 
and students of law, and the Inner and Middle Temple was the home of the 
Knights Templar. 

(2) See especially Laws and Jurisprudence of England and America, 
by John F. Dillon. Chapters II., III. and IV., for much information 
about the Inns of Court. 

See also Education for the English Bar in the Inns of Court, Green Bag, 
Vol. XV; and for elaborate accounts see Introductory Lecture, by David 
Hoffman (1823). 



38 HARVARD LAW SCHOOL. 

den, the patriot, had been in the Inner Temple in 1613, and 
other of its barristers were Manwood, Anderson, and Heneage 
Finch. Sir Thomas More and Fortescue and Mathew Hale had 
been members of Lincoln's Inn. In the Middle Temple there had 
been Plowden, Dyer, Doddridge, and Popham. 

The principal method of instruction in these Inns in the I7th 
Century was the exercises of reading, bolting, and mooting of 
cases. There were no prescribed attendance, no lectures and no 
regular course of study, however, a student being simply obliged 
to eat three dinners, (six, in case of a non-University man) in the 
Hall of the Inn, in each of the four terms, Hilary, Easter, Trin- 
ity and Michaelmas ; and after "keeping" a certain number of 
terms (at different periods, 7, 10 and 5 years) he was called by 
the "benchers" as a barrister. The mooting of cases consisted 
of arguments by barristers who had been called to the bar or by 
students who had become expert "bolters," generally at meal 
time in the Hall in the presence of the students. Bolting con- 
sisted of conversational discussions upon cases put to the stu- 
dent by a bencher or two barristers sitting as judges in private 
chambers. The readings were performed by two Readers ap- 
pointed yearly from among the oldest and most distinguished bar- 
risters. The Reader generally chose as his topic some statute, and 
for three weeks elaborated on it with much form and solemnity, 
giving out cases to be argued by the barristers in his presence. 

These readings were often cited as authority : thus Littleton's 
was on the Statute De Donis, Bacon's was on the Statute of Uses, 
Dyer's was upon the Statute of Wills, and Coke's upon the 
Statute of Fines. As it was a high honor to be selected as a 
Reader, the expense of the feasts given by him in return became 
very great ; and finally the high festival into which the reading 
developed quite overbalanced the serious portion of the exer- 
cises, (i) 

By the beginning of the iSth Century, even the very moderate 
amount of instruction given through the readings and moots 
had been gradually discontinued, or had failed, because of inat- 
tendance by the barristers and students ; and the legal educa- 
tion received became almost nominal. The student could, if he 
chose, carry on independent study, but no assistance was given 
to him and no examination required. 



(T) See The Five .-Iges of the Bench and Bar of England, by John 
M. Zane. 



17TH CENTURY ENGLAND. 39- 

In fact the Inns were legal societies or clubs rather than Law 
Schools. 

In spite of the poor facilities for acquiring a knowledge of the 
law, it is interesting to note what course of reading a law stu- 
dent of the 1 7th Century was expected to pursue. Thus Rolle, 
in his Abridgment in 1668, gives the following advice to stu- 
dents : 

Spend two or three years in the diligent reading of Littleton, 
Perkins, Doctor and Student, Fitzherbert's Natura Brevium and 
especially my Lord Coke's Commentaries and possibly his Re- 
ports After two or three years so spent, let him have a large 
commonplace book, afterwards it might be fit to read the 
Yew Book; because many of the elder Year Books are filled 
with law not so much in use ; he may single out for his constant 
reading such as are most useful, as the last part of Edward 

III, the Book of Assizes, the second part of Henry VI, Edward 

IV, Henry VII, and so come down in order and succession of 
time to the latter law, viz. : Plozvden, Dyer, Coke's Reports, the 
Second Term and those other Reports lately printed. 

Lord Hale and Lord Roger North both recommended : 

Littleton's Tenures, Perkins, Doctor and Student, Fitzherbert's 
Natura Brevium, Coke's Reports, the Year Book mentioned as 
Henry VII, Plowden, Dyer and Rastal's Entries. 

And Lord Coke in the third volume of his reports says: 

Right profitable are the ancient books of the common law yet 
extant as Glanville, Bracton, Britton, Fleta, Ingham and Novae 
Narrationes; and those also of later times as the old Tenures; old 
Natura Brevium, Littleton, Doctor and Student, Perkins, Fits- 
herbert, Natura Brevium and Stamford. If the Reader, after the 
diligent reading of the case shall observe how the case is abridged 
in those two great abridgments of Justice Fitzherbert and Sir 
Robert Brooke, it will both illustrate the case and delight the 
Reader ; and yet neither that of Statham nor that of the Book of 
Assizes is to be rejected; and for pleading, the great Book of 
Entries is of similar use and utility. To the former Reports you 
may add the exquisite and elaborate commentaries at large of 
Master Plowden . . . and the summary and fruitful observa- 
tions of ... Sir James Dyer . . . and mine own simple 
labours ; then have you fifteen books or treatises and as many 
volumes of the Reports besides the abridgments of the common 
law. 

The one indisputable knowledge needed was that of special 
pleading, as Rastall said in 1564: 



40 HARVARD LAW SCHOOL. 

This book entituled a Collection of Entrees contayneth the 
forme and maner of good pleading which is a great part of the 
cunning of the law of England, as the Right Worshipfull and 
great learned man Syr Thomas Littleton Knight, sometime one of 
the justices of the Common Pleas, in his third book of Tenures in 
the chapter of confirmation saith to his sonne. 

LAW BOOKS AND REPORTS. 

The absence of a legal profession in America at this time can 
be better understood, perhaps, if one bears in mind the extremely 
limited resources on which the student and the practitioner of 
law in England had at this time to depend. 

In the year 1692, at the time of the establishment of the first 
system of separate courts in Massachusetts, the first printed law 
book in England was only about two hundred years old Little- 
ton's Tenures printed in 1481 in the reign of Henry VI, only a 
few years after the introduction of the printing press into Eng- 
land. 

Before the beginning of the I7th Century hardly twenty-five 
law books had been printed. ( i ) 

The following are those which were at all commonly known. 

Glanville's Treatise on the Laws and Customs of England, 
written in 1187, printed in 1557. 

Dialogues de Sca-ccario, written in 1157. 

Henry Bracton on Laws and Customs of England, 1262, print- 
ed 1569. 

John Britton's Abridgment, 1275, printed 1580. (The first 
law book composed in French, Bracton and Fleta being in Latin). 

Fleta's Commentary, 1285, printed 1647. 

Ralph de Hengham's Register of Writs, 1300, printed 1616. 

Andrew Home's Miroir des Justices, 1327, printed 1642. 

Old Tenures, 1328. 

Natura Brevium writs, 1328-1376, printed 1572. 

Novae Narrationes pleadings, 1448, printed 1599. 

Littleton's Tenures, 1742, printed 1481. 

Nicholas Statham's Abridgment, 1473. 

Anthony Fitzherbert's Grand Abridgment of the Laiv, 1514- 
1516. 

Rastall's Abridgment of the Statutes, 1527. 

Rastall's Register Original, 1531. 



(i) See Dugdale's Origines Juridiciales (1666) as to law books of this 
period, also Reeve's History of the English Law; also Law and Lawyers 
by W. L. Willis in American Quarterly Review, Vol. XIII-XIV; The 
Common Law by Charles P. Daly (1894). 



17TH CENTURY ENGLAND. 41 

Saint Germain's Doctor and Student, 1530, printed 1598. 
Rastall's Entries, 1566. 

Rastall's Terms of Law, 1572, printed 1598. 
John Perkins' Profitable Book of Conveyancing, 1532, printed 
1609. 

Office of the Justice of the Peace, 1547. 
William Staunforde's Pleas of the Crown, 1556. 
Brooke's Grand Abridgment of the Law, 1568, printed 1573. 
Lombard's Archaiomea, 1568. 
Pulton's Abstract of the Penal Statutes, 1577. 
Theloal's Digest of Original Writs, 1579. 
Kitchen's Courts, 1580. 
Lombard's Eisenachia, 1581. 
Crompton on Office and Authority of a Justice of the Peace, 

1583- 
Manwood's Forest Law, 1598. 

And at the end of the I7th Century, the first law book written in 
the English language was only about 160 years old, Rastall's 
Abridgment of the Statutes (1527). 

Until the decree of Parliament of 1649, requiring all reports 
to be in English, almost all law books had been in Norman 
French or Latin, for the reason, as Coke says in the Preface to the 
third volume of his Reports : 

that it was not thought fit nor convenient to publish either 
those or any of the statutes enacted in these days in the vulgar 
tongue lest the unlearned by bare reading without understand- 
ing might suck out errors and trusting to their own conceit 
might endanger themselves and some times fall into destruction. 

During the I7th Century, few law books of importance had been 
published. 

West's Symb oleography was printed in 1605. In the same 
year Cowell's Institutes had appeared ; in 1606, Cowell's Inter- 
preter, and in 1607, Cowell's Dictionary; (i) Swinborne on Wills 
and Testaments, in 1611 ; Dalton's Justice of the Peace, in 1612; 
Finch's Common Law of England, in 1613. (2) 
Lord Bacon's great work (though small in size) on Elements of 
the Common Laivs of England, was published in 1630. And 
just about the same time Lord Coke put forth his famous Insti- 
tutes -the first volume Commentary on Littleton, in 1633, the 

(1) These three books were largely used by law students and passed 
into many editions down to as late as 1727. Cowell's Institutes received the 
compliment of being translated into English by direct of order of Parlia- 
ment in 1651. 

(2) Regarded as the best elementary book for students until the pub- 
lication of Blackstone in 1765. 



42 HARVARD LAW SCHOOL. 

Exposition of Magna Charta, in 1642, Pleas of the Crown, in 
1644, and Jurisdiction of Courts, in 1648. In 1631, came Dodd- 
ridge's English Lawyer; in 1646, March on Slander; in 1653, 
Brownlow's Declarations and Pleadings. 

In 1641, was published Sheppard's Touchstone of Common 
Assurance; in 1656, William Sheppard wrote his Abridgment; 
and in 1659, the first English law book on Corporations entitled 
Of Corporations, Fraternities and Guilds. (i) 

In 1668, appeared Chief Justice Rolle's Abridgment. (2) 

In 1666, Sir William Dugdale wrote his famous Origines 
Juridicmles, the mine from which comes a large part of our in- 
formation as to English laws, writs, judges, attorneys and ser- 
geants. 

The earliest reports of cases had been, of course, the Year 
Books which first began to be printed about 1481 and covered 
cases from about 1280 in Edward I's reign to 1537 in Henry 
VIH's.( 3 ) 

During the next one hundred years down to the time of the 
Commonwealth there had only been a few volumes of reports 
those of Plowden, Dyer, Keilway, Benlow, Dalison, D envies, Ho- 
bart, Bellewe and Coke, about fifteen in all. (4) 



(1) See especially as to this The First Book in English on the Law of 
Corporations, by Amasa M. Eaton Yale Law Journal, Vol. XIV, (1903.) 

(2) There were also a few books on the law merchant and admiralty 
law such as Malynes' Lex Mercatoria or Ancient Law Merchant (1622); 
Davies on Impositions (1656) ; Godolphus' View of Admiralty (1686) ; 
Prynne's Animadversions (1669) ; Zouch's Jurisdiction of the Admiralty 
(1686). 

(3) For full account of these see Year Book Bibliography, Harvard 
Law Review, Vol. XIV. 

(4) The first volume of the The Commentaries or Reports of Edward 
Plowden of the Inner Temple, An Apprentice of the Common Law had 
been published in 1571 ; the volumes covering roughly the times of Ed- 
ward III to Elizabeth (1350-1580), and their value consisting largely in 
the fact that while many of the early reports and year books contained 
the off hand opinions of the judges upon motions, all of Plowden's cases 
were "upon points of law tried and debated." 

Sir James Dyer's Notes (Chief Justice of Common Pleas) had been 
the next cases printed as Reports, a posthumous work, in 1585 ; and Keil- 
way and Bellewe had also come out in Elizabeth's reign. Lord Coke's 
Reports (which were really Commentaries), had been published from 
1601 to 1616, when he was Attornev General and Chief Justice of the 
Common Pleas and of the King's Bench, and covered nearly completely 
the law of the reigns of Elizabeth and James I ; each case generally con- 
taining the full pleadings and often a treatise on the point at issue. Of 
them Lord Bacon had said "Had it not been for Sir Edward Coke's Re- 
ports .... the law by this time had been almost like a ship with- 
out ballast for that the cases of modern experience are fled from those 
that are adjudged and ruled in former time." 



17TH CENTURY ENGLAND. 43 

These few reports, together with a small number of authori- 
tative reports published in the reign of Charles II., such as 
Croke (1657), Yelverton (i66i},Rolle (1675), Vaughan (1677), 
W. Jones (1675), Leonard (1658) and Sounders (1686), were 
practically the only reports known in the American Colonies, and 
substantially the only ones having any weight in England as law. 

Nevertheless during the time of the Commonwealth and the 
later Stuarts (1649-1689), a flood of other reports had burst 
from the press, nearly fifty volumes. (i) 

Parliament's order requiring law publications to be in English 
had aroused all kinds of law writers and publishers from their 
former lethargy. It was a period when the Press was tremend- 
ously stimulated in all directions. Printing ran riot the "age 
of pamphlets" so Dr. Johnson termed it. 

Of this raking up of old cases and precedents Wallace in his 
book on the Reporters says : 

"It was the mistake of Charles I, that for nearly the whole of 
his arbitrary measures he endeavored to obtain the sanction of 
the common law. Noy, his Attorney General, had found in the 
recesses of his recondite lore some precedents which relieved the 
King of most of his difficulties. . . . for they gave to the 
Crown the powers of the people .... and Charles 

. . . . assumed them as authority. This brought the law 
into unnatural prominence." 

Most of these Reports were worthless as law, and in general 
it may be said that they completely disregarded Bulstrode's ad- 
vice, given in the preface of his second volume : "That as the 
laws are the anchor of the Republic, so the Judicial Reports are 
as anchors of the laws and therefore ought to be well weighed 
before put out. "(2) 



(1) See Wallace's The Reporters (1845) ', The English Law Reporters 
Harvard Law Review, Vol. XV. 

In 1662 the act was passed requiring the licensing of printed publications ; 
and under this, until 1692, all law books were required to bear the im- 
primatur of the Lord Chancellor, the Lord Chief Justice or the Lord 
Chief Baron. 

(2) Many were simply copies, often unauthorized, of MSS. notes by 
a lawyer or judge of cases merely heard of by him ; others are copies of 
students' notes. Most of them were posthumous, the cases in a single 
volume sometimes extending over a period of one hundred years. Thus 
Anderson and New Benloe cover 130 years, Owen ioo, Savile 95, Goldsboro 
83. Many were translations or transcriptions several times removed from 
the original; thus Croke, Winch, Popham, Owen, Leonard^ Heiley, 7. 



44 HARVARD LAW SCHOOL. 

Few, if any, of these reports were known in the American 
Colonies. 

As to the Chancery reports at this time (1692), scarcely any 
existed. In fact the decrees of Lord Ellesmere, who had been 
Lord Chancellor from 1596-1617, were practically the first to 
be recorded to any extent. The decrees of the early chancellors- 
politicians and ecclesiastics as they were as well as the decrees 
of the later lawyer chancellors, headed by Sir Thomas More, had 
been, as Blackstone said, "rather in the nature of awards formed 
on the sudden .... with more probity of intention than 
knowledge of the subject founded on no settled principles, as 
being never designed, and therefore never used for precedents." 
And as Whitelock said, "A keeper of the seal has nothing but his 
own conscience to direct him, and that is sometimes deceitful." 
This was the "Roguish Equity," of which Selden spoke in his 
Table Talk, "which varied with the length of the Chancellor's 
foot."(i) 



Bridgman were originally written in Latin or French and first appear in 
English. 

Some often report only a portion of a case. Thus the leading case of 
Manby v. Scott is partially reported in I Siderfin 109 and i Levins 4, the 
opinion by Sir Orlando Bridgman is in Bridgman's Collection, Justice 
Hyde's opinion in i Modern, Chief Baron Hale's in Bacon's Abridgement, 
and parts of the case are in Keble and Modern Reports. 

Wallace says that in the great case of Vidal v. Girard's Exors, in the 
Supreme Court of the United States (2 How., 127) "Mr. Binney (p. 88) 
showed at the bar that as to the principal authority cited by the chief 
justice {Baptist Association v. Owen's Exors, 4 Wheat, i) . . . . 
there were no less than four different reports of it, all variant from each 
other. That as to one of the reporters the case had been decided 30 years 
before the time of his report .... that another reporter gave two 
versions of the case entirely different, not only from that of his co-reporter, 
but likewise from another of his own ; that a fourth account by a yet dis- 
tinct reporter was different from all the rest." 

Some report the same case under different names. Thus Clark v. Day is 
found in i Croke Eliz. 313, Owen 148, Moore, 593, Rolle, and inaccurately 
in all, it is stated. 

Most of the reports were well described in 1657 by Sir Harbottle Grims- 
tone (later Master of the Rolls), "a multitude of flying reports, whose 
authors were as uncertain as the times when taken, have of late surrep- 
titiously crept forth. We have been entertained with barren and unwar- 
ranted products which not only tends to the depriving of the first grounds 
and reasoning of the young practitioner who by such false lights are mis- 
led, but also to the contempt of divers of our former grave and learned 
justices." 

Chief Justice Holt in later days also complained bitterly of his reporters, 
saying that the "skimblescamble stuff which they published would make 
posterity think ill of his understanding." 

(i) Wallace says that "Though the binding nature of precedent in 
equity is said to have been acknowledged a good while ago by Bridgman 
(i Mod., 307) and Lord C. J. Trehy (3 Chanc. Cos., 95) it is yet true 



17TH CENTURY ENGLAND. 45 

There was therefore no scope or reason for reports of their 
decisions ; and the only Chancery reports covering this time were 
hardly more than brief notes on procedure, "reports shadowy, 
obscure and flickering," as Judge Story called them.(i) 

Such was the meagre list of Common Law and Chancery re- 
ports, less than 100 in all, from which English students and 
lawyers of the i/th Century were obliged to extract the law, 
and out of which English judges had built and were building 
the fabric of the Common Law of England. 

Yet to such an extent had this Century increased the roll of 
law books as compared with the previous i6th Century that 
the writer of the preface of 5 Modern (1711), describing 80 vol- 
umes of the Common Law said: 

Thus I have given an historical account of our reports which 
a country lawyer (who was afterwards advanced to a seat of 
justice) told the bar were too voluminous, for when he was a 
student he could carry a complete library of books in a wheel- 
barrow, but they were so wonderfully increased in a few years 
they could not then be drawn in a waggon. 

as a general thing at any rate that until the time of Lord Hardwicke 
equity was administered pretty much according to what appeared to be 
good conscience applied to the case." 

Chief Justice Vaughn says in 1671 "I wonder to hear of citing prece- 
dents in matters of equity; for if there be equity in a case, that equity 
is an universal truth and there can be no precedent in it." 

(i) Carey (1557-1604), Choyce Cases in Chancery (1557-1606), Tot- 
hill (1559-1646), Reports in Chancery (1616-1710), Nelson (1625-93), 
Cases in Chancery (1660-90), Freeman (1676-1706), Finch (1673-80), 
Swanston, Vernon (1681-1720); See Vidal v. City of Philadelphia (2 
Howard, 193). 



CHAPTER III. 

NEW ENGLAND LAW AND LAWYERS IN THE iSxn CENTURY. 

After the passing of the troublous times of James II and the 
revocation of most of the colonial charters, and after the Treaty 
of Utrecht, when peace was established on two continents, the 
American Colonies rapidly grew in wealth and influence. 

Means of education increased. William and Mary College 
was founded in Virginia in 1692, Yale College in 1700, Kings 
College (Columbia) in New York, in 1754, College of New Jer- 
sey (Princeton), at Newark, in 1746, Brown at Providence, in 
1764. The first public library was established in New York in 
1729, consisting of 1600 volumes. While the first printing press 
had been brought into Massachusetts in 1629 and set up at 
Cambridge, being owned partially by Henry Dunster, President 
of Harvard College, there were nine printers in Massachusetts 
prior to 1692; and the first paper in all the Colonies was pub- 
lished in 1704, the Boston News Letter. (i) 

In January, 1673, the first monthly postman began his trip 
between New York and Boston. In 1693, the first act was passed, 
encouraging "A general Letter Office in Boston." In 1704, the 
office of "Deputy Postmaster General for the Colonies," located 
in New York, was established by Act of Parliament. In 1753, 
Benjamin Franklin, then filling this office, established a penny 
post. 

There was, at the same time, a very rapid extension of com- 
merce, of export trade, of shipbuilding, fisheries, and slavetrad- 
ing. A class of rich merchants began to control in the commun- 
ity. Questions as to business contracts and business paper be- 
gan to arise. Land grew more valuable, and the legal determina- 
tion and stability of landed rights become more necessary. Though 

(i) Then followed the Boston Gazette, and the American Magazine, 
at Philadelphia, in 1719; the New England Courant in 1721, the New 
York Gazette in 1725, the Maryland Gazette, at Annapolis, in 1728, the 
South Carolina Gazette, at Charleston, and the Rhode Island Gazette, at 
Newport, in 1732, the Weekly Journal, at New York, in 1733, the Virginia 
Gazette, at Williamsburg, in 1736, the Connecticut Gazette, at New Haven, 
in 1755, the American Magazine, at Philadelphia, in 1741, the Pennsyl- 
vania Journal in 1742, the North Carolina Gazette, at New Berne, in 1755, 
the New Hampshire Gazette, at Portsmouth in 1756. 



NEW ENGLAND LAWYERS. 47 

less encumbered with elaborate trusts and settlements than in 
England, wills grew more complicated. Important questions 
arose between the government of the various Colonies. The politi- 
cal liberties guaranteed by the principles of the English Common 
Law became increasingly more vital to the colonists, as the Royal 
Governors attempted to enlarge their own powers, and the King 
and Parliament began to trespass on what the Colonies regarded 
as their own prerogatives. 

Thus arose the need for lawyers trained in English law. The 
need, supplied at first by barristers from England, was soon 
filled by native lawyers, educated in the colleges and in law of- 
fices of the Colonies. 

MASSACHUSETTS. 

While the Bar in Massachusetts developed rapidly in legal 
training, the bench still lagged behind ; and for many years was 
composed chiefly of laymen. 

Of the Chief Justices of the Superior Court of Judicature in 
Massachusetts, the first, William Stoughton (Chief Justice 1692- 
1701) was a clergyman (i); his successor, Waite Winthrop, 
(Chief Justice 1701, and 1708-1717) was a physician (2) ; Isaac 
Addington (1702-1703), was a physician (3) ; Samuel Sewall 
(1718-1728), was a clergyman (4) ; Benjamin Lynde (1728- 
1749), was a barrister of the Middle Temple (5) ; his successor, 
Paul Dudley, (1749-1751), was a barrister of the Inner Temple 
(6) ; Stephen Sewall (1752-1760), was a tutor in Harvard Col- 
lege (7); Thomas Hutchinson (1760-1771), was a wealthy 
merchant (8); Benjamin Lynde, the younger, (1771-1772), had 
a legal education in the Colony (9) ; Peter Oliver (1772-1776), 
was a literary man (10). 

Of the twenty-three associate judges, Edmund Trowbridge, 
Chambers Russell ( 1 1 ) and William Gushing, were the only ones 

(1) Born 1631, Harvard graduate of 1650. 

(2) Born 1642, grandson of John Winthrop, Judge of Admirality, 1699. 

(3) Born 1645. 

(4) Born 1652, Harvard, 1671, Judge of Probate, 1715-1728. 

(5) Born 1666, Harvard, 1686, Advocate General of the Court of Ad- 
mirality, 1697. 

(6) Born 1675, Harvard, 1690, Attorney General, 1702. 

(7) Born 1702, Harvard, 1721. 

(8) Born 1711, Harvard, 1727, 1752 Judge of Probate, 1758 Lieut. Gov. 
(9 Born 1700, Harvard, 1718. 

(10) Born 1712, Harvard, Harvard, 1730. 

(n) Born 1713, Harvard, 1731, Judge of Probate, 1752. 



48 HARVARD LAW SCHOOL. 

who had any regular legal education, the rest being laymen or 
men trained for the ministry. Roger Mompesson and Robert 
Auchmuty, Judges of Admirality, had been English barristers. No 
other trained lawyers appeared on the Bench. 

Notwithstanding their lack of systematic legal training, how- 
ever, many of these judges were men of great learning and some 
of them had read considerable law. Thus it has been said of 
William Stoughton that(i) : 

He had extraordinary attainments in legal learning .... 
It is true that he as well as Dudley and Sewall was bred a 
clergyman ; but those who imagine that the study of divinity unfits 
the student for forensic, legislative or magisterial duties are to 
be reminded that the legal is but a lay branch of the clerical pro- 
fession from which it sprung; and that the secularizing of juris- 
prudence is a work of modern times I think the three 

magistrates I have named, each of whom acceptably held the 
post, either in Massachusetts or New York, of chief justice of the 
highest judicial court will compare favorably in respect to all 
those acquirements necessary to the proper conduct of trials and 
the administering of forensic justice, with, at least, the average 
benchers of the Inns of Court in the days of William and 
Anne. 

So too of Samuel Sewall, Washburn says : 

From a perusal of his journal it is apparent that he had a 
natural taste for legal science which he had cultivated by a very 
respectable course of study He must have been altogether better 
read in the principles of the common law than any other judge 
upon the bench. 

And Sewall's address to the Grand Jury at the opening of the 
first court in the new Town House in Boston, April 27, 1793, 
contains most enlightened views : 

Let never any judge debauch this bench by abiding on it when 
his own cause comes under trial. May the judges always discern 
justice with a most stable, permanent impartiality. Let the at- 
torneys remember they are to advise the court as well as plead 
for their clients. 

Thomas Hutchinson being a man of liberal culture had devoted 
much time to the reading of law though he had never practised 



(l) See Witch Trials in Massachusetts by Abner E. Goodell Mass. 
Hist. Soc. Proc., Vol. XX (1883). 



NEW ENGLAND LAWYERS. 49 

law. In his diary he remarks, that "Though it was an eyesore 
to some of the bar to have a person at the head of the law who 
had not been bred to it, he had reason to think the lawyers in 
general at no time desired his removal."(i) 

That the lawyers were restive under the Chief Justice's lack 
of legal knowledge, is shown, however, in a letter written by 
John Adams to William Tudor (March 8, 1817), regarding a 
controversy between the Governor and the General Court in 
which he had appeared as counsel : 

Mr. Hutchinson had wholly misunderstood the legal doctrine 
of allegiance I had quoted largely from a law au- 
thority which no man in Massachusetts had ever read. Hutch- 
inson and all his law counsels were in fault; . . . They, 
dared not deny it lest the book should be produced to their con- 
fusion. It was humorous enough to see how Hutchinson wrig- 
gled to evade it. He found nothing better to say than that it 
was 'the artificial reasoning of Lord Coke.' The book was 
Moore's Reports It had been Mr. Gridley's.(2) 

It is a noticeable fact, however, that 20 out of 33 of the Superior 
Court Judges, though without legal training, were graduates of 
Harvard College. And even of the judges of the lower Courts 
of Common Pleas in Suffolk County, 12 out of 25 were graduates 
of Harvard; in Middlesex, 7 out of 20; in Essex, 12 out of 30; in 
Plymouth, 8 out of 19. (3) 

Of the ten Attorney-Generals, Thomas Newton, (who came 
over in 1688), was the only English barrister; although Adding- 
ton Davenport had received a Master's Degree at Oxford, and 
seven of the others had studied law in the Province, six being 
Harvard graduates. 

It was not until June 20, 1701-2, that practice of the law became 
first dignified as a regular profession, through the requirement 

by statute of an oath for all attorneys practicing in the courts, 
as follows : 



(1) An interesting sidelight is thrown on this, by an entry in his 
diary under date of July 22, 1774, when he was in England visiting Sir 
Francis Bernard. 

"Sir Francis mentioned among other things that he apologized to Lord 
Mansfield for appointing me Chief Justice, not having been bred to the 
law ; adding that he had no cause to repent it. Lord Chief Justice Wil- 
mot being by, broke out with an oath "By , he did not make a 

worse chief justice for that!" See Diary of Thomas Hutchinson, p. 195. 

(2) Life of Thomas Hutchinson, by James K. Hosmer (1896). 

(3) See biographies in Judicial History of Massachusetts, by Emory 
Washburn. 



50 HARVARD LAW SCHOOL. 

You shall do no falsehood, nor consent to any to be done in 
the court, and if you know of any to be done you shall give 
knowledge thereof to the justices of the court, or some of them, 
that it may be reformed. You shall not wittingly and willingly 
promote, sue or procure to be sued any false or unlawful suit, 
nor give aid or consent to the same. You shall delay no man 
for lucre or malice, but you shall use yourself in the office of an 
attorney within the court according to the best of your learning 
and discretion, and with all good fidelity as well to the courts 
as to your clients. (i) 

The scarcity of lawyers and the fear of parties retaining the 
whole Bar is shown by the passage of the Act of June 16, 1708, 
providing that "no person shall entertain more than two of the 
sworn allowed attorneys at law, that the adverse party may have 
liberty to retain others of them to assist him, upon his tender of 
the established fee which they may not refuse. (2) 

At first the native lawyers were, in general, men of little dis- 
tinction, or reputation ; and the lawsuits were of small import. 

During the first half of the i8th Century, New England was 
crippled by foolish financial management, through the unlim- 
ited issuie of paper money, and from 1704 to 1741, the depreciation 
of the currency produced innumerable troubles. These conditions 
gave rise to much litigation ; and William Shirley reported to the 
Board of Trade, in 1743, that "it was not infrequent for persons 
of some circumstances and character to suffer judgments to be 
given against them by default in open court for such debts, and 
to appeal from one court to another merely for delay ; whereby 
lawsuits were scandalously multiplied and a litigious, trickish 
spirit promoted among the lower sort of people." (3) 

Even as late as 1758, John Adams, soon after he was admit- 
ted to the Bar, stated, that he "found the practice of law was 
grasped into the hands of deputy sheriffs, pettifoggers, and 
even constables, who filled all the writs upon bonds, promissory 
notes and accounts, and received the fees established for law- 
yers, and stirred up many unnecessary suits." 

In 1747, Dr. Douglas wrote in his Summary, "Generally in all 

(1) This oath followed almost exactly the form set forth in England 
in The Book of Oaths (1649) ; and see also The Practick Part of the 
Law (1676). 

(2) This provision appeared again in 1785 ; and as late as 1836, (Rev. 
St. Ch. 88, Sect. 26) it was provided, that no more than two persons 
for each party should, without permission of the court, be allowed to man- 
age any case. 

(3) Life of Thomas Hutchinson, by James K. Hosmer, p. 20 (1896). 



NEW ENGLAND LAWYERS. 51 

our colonies, particularly in New England, people are much ad- 
dicted to quirks of the law. A very ordinary countryman in 
New England is almost qualified for a country attorney in Eng- 
land."^) 

Contemporary with these conditions, however, a small Bar of 
native lawyers of really great ability was growing usp. 

The Nestor of them was John Read, who, born in 1679, gradu- 
ated from Harvard in 1697, studied in Connecticut and was ad- 
mitted to the Bar in New Haven in 1708. Before his death in 
1749, he acquired the reputation of being "the greatest common 
lawyer that ever lived in New England." Of him, Adams said 
later, "He had as great a genius and became as eminent as any 
man." To him is due many of the forms of writs, actions, decla- 
rations and conveyancing, later in use. He was retained by 
the Colony of Connecticut, and also by Massachusetts, in import- 
ant boundary dispute cases with New York, New Hampshire 
and Rhode Island ; also for the town of Boston in many cases, 
one of particular importance involving the title to Dock square, 
tried for six years and appealed to the King in Council, where 
he won. (2) 

After Read, came Jeremiah Gridley, who, born in 1702, a 
Harvard graduate of 1723, studied first for the ministry and later 
became "the father of the Boston Bar," Attorney General in 1742, 
and the great legal scholar of the Century. His office was the 
training school for James Otis, Jr., and John Adams, of whom 
Gridley used to observe, that "he had reared two young eagles 
who were one day to peck out his eyes." Oxenbridge Thacher, 
Benjamin Pratt (later Chief Justice of New York), and William 
Gushing, (later Chief Justice of the Supreme Couirt of Massa- 
chusetts and Justice and Chief Justice of the Supreme Court of 
the United States), were also his pupils. 

Judge Edmund Trowbridge, born in 1699, a Harvard graduate 
of 1728, was the great "real estate" lawyer of the time, termed by 
Chief Justice Isaac Parker, in 1813, "perhaps the most profound 
common lawyer of New England before the Revolution." His 
opinions and his essay on the law of mortgages were considered of 
such value as to be annexed (after his death in 1793, at the age of 



(1) A Summary, Historical and Political, of the First Planting, Pro- 
gressive Improvements and Present State of the British Settlements in 
North America, by William Douglas (London 1747). 

(2) Life of John Read, by George B. Read (1903). 



52 HARVARD LAW SCHOOL. 

94) to Volume 8 of the Massachusetts Reports; and such was his 
learning and ability, that it is said by John Adams, that he had the 
entire command of the practice in Middlesex, Worcester, and 
several other counties, and had the power to crush any young 
lawyer by a frown or nod. In his office in Cambridge studied 
Francis Dana and Theophilus Parsons (both of whom became 
Chief Justices of the Supreme Court of the State of Massa- 
chusetts), James Putnam, Royall Tyler, (Chief Justice of Ver- 
mont), Rufus King, Christopher Gore and Harrison Gray 
Otis. 

Contemporary with Gridley, were William Shirley, Robert 
Auchmuty, and William Bollan who were native English lawyers, 
Richard Dana(i), Benjamin Kent(2), James Otis, Sr.(3), 
Timothy Ruggles (4), and Benjamin Pratt (5). 

About two decades later, another group of lawyers added dis- 
tinction to the Bar James Otis, Jr. (6), Oxenbridge Thacher 
(7), Samuel Adams (8), Jonathan Sewall (9), Robert Treat 
Paine (10), John Worthington (n), and Joseph Hawley (12), 
the two latter being the most prominent of the few lawyers prac- 
tising in the western part of the Province. 

About 1765, just prior to the Revolution, a third group of 
eminent young lawyers of considerable law learning began to 
distinguish themselves John Adams(i3), Josiah Quincy, Jr. 
(14), Samuel Quincy (15), Sampson Salters Blowers (16), 



(1) Born in 1700, Harvard graduate of 1718. 

(2) Born about 1705, Harvard 1727, educated as a clergyman. 

(3) Born in 1702. father of James Otis, Jr. 

(4) Born in 1711, Harvard 1732. 

(5) Born in 1709, Harvard 1737, Chief Justice of New York in 1761. 

(6) Born in 1725, Harvard 1743, studied with J. Gridley. 

(7) Born in 1720, Harvard 1/38, studied for the ministry, later studied 
law with J. Gridley. 

(8) Born in 1722, Harvard 1740. 

(9) Born in 1728, Harvard 1748, a school teacher, later studied law 
with Judge Chambers Russell, admitted to practice 1758, Attorney Genera! 
1767. " 

(10) Born in 1731, Harvard 1749, became a minister, later admitted 
to the Bar in 1759. 

(n) Born in 1719, Yale 1740, studied law with Gen. Phinehas Lyman. 

(12) Born in 1724, Yale 1742, studied for the ministry, later studied 
law with Gen. Lyman. 

(13) Born 1735, Harvard 1755, studied law with Judge James Putnam, 
admitted to the Bar in 1758, called as Barrister 1761. 

(14) Born in 1744, Harvard 1763. 

(15) Born in 1735, Harvard 1754, studied with Benjamin Pratt, 
Solicitor General 1767. 

(16) Born in 1742, Harvard 1763, studied law under Gov. Hutchinson. 



NEW ENGLAND LAWYERS. 53 

Theophilus Bradbury (i), William Cushing(2), Daniel Leon- 
ard (3), Theodore Sedgwick(4), and Caleb Strong(5). 

At first no special qualifications and no definite term of study 
had been required for admission to the Bar. But, in reality, in 
order to master the profession, a student in the Colonies had to 
acquire far more knowledge than a student at the Inns of Court 
in London; for as Gridley said to Adams in 1758 :(6) 

A lawyer in this country must study common law and civil 
law and natural law and admiralty law and must do the duty of 
a counsellor, a lawyer, an attorney, a solicitor and even of a 
scrivener ; so that the difficulties of the profession are much 
greater here than in England. 

Notwithstanding this outlook, the students of law increased in 
number, so that in 1756, John Adams, who had begun to study 
in the office of Judge James Putnam of Worcester (Harvard 
1746), wrote, that they were "very numerous." (7) 

Gradually, under the influence of the able lawyers mentioned 
above, a regular Bar began to establish itself ; and out of it grew 
rules regulating practice, course of study and legal etiquette. 
By 1757, when John Adams was meditating the opening of an 
office in the country part of the then county of Suffolk, he was 
told "that the town of Boston was then full of lawyers, and 
many of them of established character for long experience, great 
abilities, and extensive fame, who might be jealous of such a 
novelty and might be induced to obstruct me." 

That these lawyers were men of importance to their juniors, 
is amusingly shown by Adams, in a further entry in his diary. 
Oct. 24, 1758; "Went into the court house and sat down by Mr. 
Paine at the lawyers' table. I felt shy under awe and concern; 
for Mr. Gridley, Mr. Pratt, Mr. Otis, Mr. Kent and Mr. Thacher 



(1) Born in 1732, Harvard 1757, practiced law in Maine 1761-1779, 
one of the earliest lawyers there. 

(2) Born in 1732, Harvard 1751, studied law with J. Gridley, was the 
first regular educated lawyer to settle in Maine, 1755, Chief Justice of 
Massachusetts 1776. 

(3) Born in 1740, Harvard 1760. 

(4) Born in 1746, left Yale without graduating in 1765, studied for 
the ministry, admitted to the Bar in 1766. 

(5) Born in 1745, Harvard 1764, admitted to the Bar in 1772. 

(6) John Adams' Life and Works, Vol. II., p. 46. 

(7) General Gage later denounced "this country where every man 
studies law" ; and in 1768 the British Attorney General said, "Look into 
the papers and see how well these Americans are versed in Crown Law". 



54 HARVARD LAW SCHOOL. 

were all present and looked sour. I had no acquaintance with 
anybody but Paine and Quincy and they took but little notice." 
As early as 1761 the Bar had formed a regular association; and 
had prescribed seven years of probation three of preliminary 
study, two of practice as attorney in the Inferior Court, and two 
of practice as attorney in the Superior Court. (i) John Adams, 
noting in his diary July 28, 1766, the Bar meeting for the admis- 
sion of three young gentlemen, Mr. Oliver, Mr. Quincy and Mr. 
Blowers, consoled himself for the "swarming and multiplying" of 
lawyers, by the reflection that four years must elapse before they 
could assume the gown. Adams describes as follows the admis- 
sion to practice of himself and Samuel Quincy, Nov. 6, 1758, their 
sponsor before the Court being Gridley, the Attorney General : 

I began to grow uneasy, expecting that Quincy would be sworn 
and I have no patron, when Mr. Gridley made his appearance, 
and, on sight of me, whispered to Mr. Pratt, Dana, Kent, 
Thacher, about me. Mr. Pratt said nobody knew me. "Yes," 
says Gridley, "I have tried him and he is a very sensible fellow!" 
At last he rose up and bowed to his right hand and said, "Mr. 
Quincy," when Quincy rose up; then he bowed to me, "Mr. 
Adams," when I walked out. 

After being presented to the bench with a few complimentary 
remarks, "the clerk was ordered to swear us ; after the oath, 
Mr. Gridley took me by the hand, wished me much joy, and 
recommended me to the bar. I shook hands with the bar and re- 
ceived their congratulations, and invited them over to Stone's to 
drink some punch, where most of us resorted, and had a very 
cheerful chat." 

This genial relationship between the seniors and juniors of the 
Bar on days of admission was preserved for some time later. 
Thus, Prentiss Mellen (Harvard 1784), and later Chief Justice 
of Maine, who studied with Shearjashub Bourne at Barnstable 
and was admitted to the Plymouth Bar, says, that "according to 
the fashion of that day on the great occasion I treated the judges 
and all the lawyers with about half a pail of punch, which treat- 
ing aforesaid was commonly called the colt's tail." 

In 1763, Adams writes in his diary, that the Bar had agreed 
"that nobody should answer to a suit but the plaintiff himself or 
some sworn attorney, and that a general power should not be 

(i) Adams' Life and Works, Vol. II., p. 197. G. Dexter, Mass. Hist. 
Soc. Coll. Vol. VI., p. 145. 



NEW ENGLAND LAWYERS. 55 

admitted ;" also that "no attorney should be allowed to practice 
in the Superior or Inferior Courts unless duly sworn." 

About 1760, Chief Justice Hutchinson, by a rule of court, in- 
troduced the distinction between barristers and attorneys, and 
provided that none but barristers could argue in the Superior 
Court. This rule was not always enforced ; for Josiah Quincy, 
Jr., who was refused to admission as a barrister, being obnoxious 
in his politics to the ruling powers, says in his Reports in Aug., 
1769: 

At the last sitting of the Superior Court in Charlestown I 
argued (for the first time in this court) to the Jury though not 
admitted to Gown, the legality and propriety of which some have 
pretended to doubt ; but as no scruples of that kind disturbed me, 
I proceeded (maugre any) at this court to manage all my own 
Business, (for the first time in this country) though unsancti- 
fied and uninspired by the pomp and magic of the long robe. 

By rule of court, three years of practice was required be- 
fore admission as a barrister. This was later increased to 
seven years, with a regular grade of promotion, similar to the 
custom of England, where five years' residence in the Inns of 
Court was required, and three years, of a graduate of Oxford 
or Cambridge. 

At the same time H'Utchinson also introduced a costume for the 
judges, consisting of a black silk gown, worn over a full black 
suit, white bands, and a silk bag for the hair. This was worn 
by the judges in civil causes, and criminal trials, excepting those 
for capital offenses, in which trials they wore scarlet robes,(i) 
with black velvet collars and cuffs to their large sleeves, and 
black velvet facings to their robes. 

Of such importance was this costume that Hutchinson deemed 
it worthy of record to note in his diary, after describing the riot 
in Boston on the night of the 26th of August, 1765, when all his 
plate, family pictures, furniture, wearing apparel and the books 
and manuscripts, which he had been thirty years collecting, were 
destroyed by the mob, that : "The Superior Court was to be 
held the next morning in Boston. The Chief Justice who was 
deprived of his robes and all other apparel, except an undress he 
was in when the mob came, appeared in that undress and an 

(i) The color of the robes may remind one of Cromwell's remark, 
"Well, if I cannot rule by red gowns, I will rule by redcoats." Camp- 
bell's Lives of the Chief Justices, Vol. II., p. 187. 



56 HARVARD LAW SCHOOL. 

ordinary great coat over it which he borrowed."(i). Soon after 
the Revolution this costume was laid aside, it is supposed, because 
it was not suited to the simplicity of the form of government, and 
the last appearance of the judges in gowns was at the funeral of 
Governor Hancock in October 1793, when they wore black 
silk. (2) 

John Adams, writing to his pupil, William Tudor, says of 
these innovations : 

I pass over that scenery which he introduced so showy and so 
shallow, so theatrical and so ecclesiastical of scarlet and sable 
robes, of broad bands and enormous tie wigs more resembling 
fleeces of painted merino wool than anything natural to man and 
that could breathe with him. I pass over also the question 
whether he or his court had legal authority to establish a dis- 
tinction between barristers and attorneys. Innovations, though 
often necessary, are always dangerous. (3) 

It appears from the court records for the August term 1762, 
that 26 gentlemen had been called by the court to be barristers 
at law, and that twelve of them had appeared in barristers habits 
black silk gown, bands and bag wigs. (4) 

By 1768, the order of barristers was so well recognized that it 
is known that there were then 25(5). In 1770, a new Bar As- 
sociation was formed in Boston ; and several of the other counties, 
notably Essex, had similar associations, of great ability. 

(1) Diary and Letters of Thomas Hutchinson, pp. 67, 69. See also Life 
of Thomas Hutchinson by James K. Hosmer, p. 95. "So strict was Lord 
Eldon (on matters of dress) that I remember Wetherell, when Attorney 
General, having forgot the full bottom wig and appeared in a tie, Lord 
Eldon 'regretted that his Majesty's Attorney General was not present 
at the bar, as the interests of the Crown were concerned.' ): Life of Lord 
Campbell, Vol. I., p. 793. 

(2) William Sullivan in his Familiar Letters on Public Characters 
(1847), says that "the judges had up to this time (1793), worn robes of 
scarlet faced with black velvet in winter, and black silk gowns in sum- 
mer." 

(3) Adams' Life and Works, Vol. X., p. 233, Vol. II., p. 133- G. 
Dexter in Mass. Hist. Soc., Proc., Vol. XIX, p. 144. 

(4) See Life of James Otis, Amer. Law Rev., Vol. I, 541. 

(5) Of these 25, eleven were in Suffolk, Richard Dana, Benjamin 
Kent, James Otis, Jr., Samuel Fitch, William Read, Samuel Swift, Ben- 
jamin Gridley, Samuel Quincy, Robert Auchmuty, and Andrew Cazneau, 
of Boston, and Jonathan Adams, of Braintree; five were in Essex, Dan- 
iel Farnham and John Lowell, of Newburyport, William Pynchon, of 
Salem, John Chipman, of Marblehead, and Nathaniel Peaselee Sergeant, 
of Haverhill ; one was in Middlesex, Jonathan Sewall ; two in Worcester, 
James Putnam, of Worcester, and Abel Willard, of Lancaster; three in 
Bristol, Samuel White and Robert Treat Paine, of Taunton, and Daniel 
Leonard, of Norton; in Hampshire, John Worthington, of Springfield; 



NEW ENGLAND LAWYERS. 57 

At the time of the Revolution, there were in the whole Province 
36 barristers and 12 attorneys practising in the courts.(i) 

In February, 1781, the following rule was made by the Su- 
perior Court of Judicature : the first order relating to lawyers 
made by the Court after Massachusetts became a State : 

Whereas learning and literary accomplishments are necessary 
as well to promote the happiness as to preserve the freedom of 
the people, and the learning of the law when duly encouraged and 
rightly directed, being as well peculiarly subservient to the great 
and good purpose aforesaid, as promotive of public and private 
justice; and this court being at all times ready to bestow peculiar 
marks of approbation upon the gentlemen of the Bar, who, by a 
close application to the study of the science they profess, by a 
mode of conduct which gives a conviction of the rectitude of their 
minds, and a fairness of practice that does honour to the pro- 
fession of the law, shall distinguish themselves as men of science, 
honour and integrity : Do order that no gentlemen shall be called 
to the degree of Barrister until he shall merit the same, by his 
conspicuous learning, ability and honesty; and that the Court will, 
of their own mere motion call to the Bar such persons as shall 
render themselves worthy as aforesaid; and that the manner of 
calling barristers shall be as follows : The gentleman who shall 
be a candidate shall stand within the bar. The Chief Justice, or in 
his absence the senior justice, shall, in the name of the Court, 
repeat to him the qualifications necessary for a Barrister of the 
Law ; shall let him know that it is a conviction in the mind of the 
Court of his being possessed of these qualifications that induces 
them to confer this honour upon him ; and shall solemnly charge 
him so to conduct himself as to be of singular service to his 
country by exerting his abilities for the defence of her constitu- 



in Plymouth, James Hovey and Pelham Winslow. After 1768, these barris- 
ters were called : Joseph Hawley, of Northampton, David Sewall, of York, 
Moses Bliss, of Springfield, Zephaniah Leonard, of Taunton, Theophilus 
Bradbury, of Falmouth (Portland), David Wyer, of Falmouth, Mark 
Hopkins, of Great Barrington, Simeon Strong, of Amherst, John Sulli- 
van, of Durham, Daniel Oliver, of Hardwick, Francis Dana, of Cam- 
bridge, Sampson Salter Blowers, of Boston, Daniel Bliss, of Concord, 
Samuel Porter, of Salem, Joshua Upham, of Brookfield, Shearjashub 
Bourne, of Barnstable, James Sullivan, of Biddeford, Jeremiah D. Rogers, 
of Littleton, Oaks Angier, of Bridgewater, John Sprague, of Lancaster, 
Caleb Strong, of Northampton, Elisha Porter, of Hadley, Theodore Sedg- 
wick, of Sheffield, Benjamin Hichborn, of Boston, Theophilus Parsons, 
of Newburyport, Jonathan Bliss, of Springfield, William Tudor, Perez 
Morton and William Wetmore of Boston, and Levi Lincoln, of Worces- 
ter. 

(i) Of the 31 barristers mentioned by Washburn in his Judicial His- 
tory of Massachusetts from 1700 to 1776, 17 were Harvard graduates, i 
from Yale, 4 from English Colleges and 9 non-graduates. 



58 HARVARD LAW SCHOOL. 

tional freedom ; and so to demean himself as to do honour to the 
Court and Bar. 

Not only was the Bar an able, brilliant and educated one from 
1760 to 1775 ; but the cases tried demanded talents of high order. 

In 1761, arose probably the most famous colonial case of the 
i8th Century, that of the Writs of Assistance Paxtoris Case 
(Quincy Reports, p. 51), graphically described by John Adams. 
The trial took place in the Council Chamber, in the building now 
known as "The Old State House" in Boston. 

In this chamber near the fire, were seated five judges with 
Lieut. Governor Hutchinson at their head, as Chief Justice, all in 
their new fresh robes of scarlet English cloth, in their 
broad bands and immense judicial wigs. In this chamber 
were seated at a long table all the barristers of Boston, and 
its neighboring County of Middlesex, in their gowns, bands and 
tye-wigs. They were not seated on ivory chairs, but their dress 
was more solemn and more pompous than of the Roman Senate 
when the Gauls broke in upon them. Two portraits at more 
than full length of King Charles the Second in splendid golden 
frames were hung upon the most conspicuous sides of the apart- 
ment. In a corner of the room must be placed, wit, sense, 
imagination, genius, pathos, reason, prudence, eloquence, learn- 
ing, science and immense reading hung by the shoulders on two 
crutches covered with a cloth great coat, in the person of Mr. 
Pratt, who had been solicited on both sides, but would engage on 
neither, being about to leave Boston forever, as chief justice of 
New York. 

The court which sat on this august occasion, consisted of Chief 
Justice Hutchinson, Benjamin Lynde, John Cushing, Peter Oli- 
ver and Chambers Russell. The counsel engaged were Jeremiah 
Gridley in favor of, and Oxenbridge Thacher and James Otis, Jr. 
against, the application. "Then and there was the first scene of 
the first act of opposition to the arbitrary claims of Great Brit- 
ain. Then and there the child, Independence, was born. Every 
man of an immense crowded audience appeared to me to go 
away, as I did, ready to take up arms against writs of assist- 



ance." 



In 1762, the important case of Dudley v. Dudley arose, involv- 
ing the question whether a devise under Governor Dudley's will 
was a fee simple or an entailment. "In the first argument," says 
William Sullivan (in 1825), "Otis and Gridley contended, that 
it was the former; Kent (a very inferior man) and Trow- 



NEW ENGLAND LAWYERS. 59 

bridge, that it was the latter. In the second argument, Auchmuty 
was substituted for Kent. The argument was a very able one, 
even in comparison with those of modern times. The court de- 
cided the devise to be a fee simple. But as none of its members 
were lawyers, they wisely forbore to give any reasons for their 
opinion." 

In November, 1770, came the trial of Captain Preston and the 
British Soldiers for murder, "the Boston Massacre." It was the 
high test of the honor and independence of the American Bar 
that John Adams, and Josiah Quincy, Jr., then only seven 
years out of college, and not yet a barrister, and his classmate 
Sampson Salters Blowers (Harvard 1763), were willing to under- 
take the defence of the unpopular side. (i) 

The trial lasted eight days before Benjamin Lyn.de. John Gush- 
ing, Peter Oliver and Edmund Trowbridge. The counsel for the 
crown were Robert Treat Paine, and Samuel Ouincy, Jonathan 
Sewall, Attorney General, signed the indictments. Of the de- 
fendants, Preston and six of the others, were acquitted ; two were 
found guilty of manslaughter, but praying the benefit of clergy, 
were "each of them burnt in the hand in open court and dis- 
charged." (2) 

NEW HAMPSHIRE. 

For the first fifty years of New Hampshire history, no prac- 
tising attorney was made a judge, although George Jaffrey, the 
Chief Justice from 1726 to 1732, was a Harvard graduate. (3) 

In 1754, Theodore Atkinson, who had been a clerk of the Court 
of Common Pleas in Massachusetts, and had been admitted to the 
Bar in 1731, became the first Chief Justice with any legal train- 
ing- (4) 



(1) John Adams wrote in his diary March 5, 1773, "The part I took 
in defense of Capt. Preston and the soldiers, procured me anxiety and 
obloquy enough. It was, however, one of the most gallant, generous, 
manly and disinterested acts of my whole life, and one of the best pieces 
of service I ever rendered my country. Judgment of death against those 
soldiers would have been as foul a stain upon this country as the execu- 
tion of the Quakers or witches anciently." 

(2) At this time in England, all persons capable of taking holy orders, 
i. e., who could read, who had committed a felony other than wilful mur- 
der, might claim "benefit of clergy," and thus escape punishment other 
than imprisonment for one year and burning in the hand. See Criminal 
Laws of England, by Sir James Fitzjames Stephen, p. 71 (1863). 

(3) Born in 1682, Harvard 1702, Chief Justice 1720-32. There were 13 
Chief Justices from 1693 to 1776. 

(4) Born in 1697, Harvard 1716, Chief Justice 1754-75. 



60 HARVARD LAW SCHOOL. 

Prior to the Revolution, only two other judges had been law- 
yers, Leverett Hubbard (Harvard 1742), who had studied law in 
Rhode Island, appointed Judge in 1763, and William Parker, 
appointed in 1771, "a well read and accurate lawyer"(i) and the 
head of the Bar. 

From 1776 to 1782, the Chief Justice was Meschech Weare, 
who had studied theology but did not preach (2) ; Mathew 
Thornton, a physician, and John Wentworth, a lawyer of little 
distinction, being his associates. 

From 1782 to 1790, Samuel Livermore was Chief Justice. He 
was a trained lawyer, born in 1732 in Massachusetts, a graduate 
of Princeton in 1752, a student in the office of Judge Edmund 
Trowbridge, in 1769 King's Attorney in New Hampshire, Attor- 
ney General of the State in 1776. He sat on the bench however 
with three associates who were not lawyers, and he himself was in- 
tolerant of legal precedent. It is said that in charging the jury, 
he used to caution them "against paying too much attention to the 
niceties of the law to the prejudice of Justice"; and when re- 
minded of previous rulings of his own, contrary to his present rul- 
ing, he would reply that "every tub must stand on its own bottom." 

Jeremiah Mason says, in his autobiography, that Benjamin 
West, "by far the best lawyer in this region of the country", told 
him this anecdote of Livermore, as illustrating the uselessness of 
citing precedents. "Judge Livermore, having no law learning 
himself, did not like to be pestered with it at his courts. When 
West attempted to read law books in a law argument, the Chief 
Justice asked him why he read them; 'if he thought that he and 
his brethren did not know as much as those musty old worm- 
eaten books'? Mr. West answered, These books contain the 
wisdom of the ancient sages of the law'. The reply was, 'Well 
do you think we do not understand the principles of justice 
as well as the old wigged lawyers of the dark ages did ?' ' 

Josiah Bartlett, a physician, was Livermore's associate, of 
whom it was said, that "when the law was with the plaintiff, and 
equity seemed to him on the other side, he was sure to pronounce 
in favor of equity." John Dudley, the most prominent of the 
assistant judges from 1785 to 1797, was a farmer and trader; and 
his style of charging the jury has been quoted as follows : 



(1) Born in 1703. 

(2) Born in 1713, Harvard 1735, Chief Justice 1776-82. 



NEW ENGLAND LAWYERS. 61 

Gentlemen of the jury, the lawyers have talked to you of law. 
It is not the law we want, but justice. They would govern us by 
the common law of England. Trust me, gentlemen, common 
sense is a much safer guide for us, the common sense of Ray- 
mond, Exeter and the other towns which have sent us here to 
try this case between two of our neighbors. It is our business 
to do justice between the parties not by any quirks of the law out 
of Coke or Blackstone books that I never read and never will- 
but by common sense as between man and man. 

In one case, in which Jeremiah Mason had filed a demurrer, 
Judge Dudley said that ''demurrers were no doubt an invention 
of the bar to prevent justice, a part of the common law pro- 
cedure," but that he had always "thought them a cursed cheat". 
"Let me advise you, young man," he added, "not to come here 
with your new fangled law you must try your cases as others do, 
by the court and jury". 

William Plumer thus describes the condition of the Courts: 

Under the colonial government, causes of importance were 
carried up, for decision in the last resort, to the governor and 
council, with the right, in certain cases a right seldom claimed 
of appeal to the king in council. As the executive functionaries 
were not generally lawyers, and the titular judges were often 
from other professions than the legal, they were not much in- 
fluenced in their decisions by any known principles of established 
law. So much, indeed, was the result supposed to depend upon 
the favor or aversion of the court, that presents from suitors to 
the judges were not uncommon, nor, perhaps, unexpected. On 
one occasion, the chief justice, who was also a member of the 
council, is said to have inquired, rather impatiently of his servant, 
what cattle those were that had waked him so unseasonably in 
the morning by their lowing under his window ; and to have been 
somewhat mollified by the answer that they were a yoke of six- 
feet cattle, which Col. had sent as a present to His Honor. 

"Has he?" said the judge; "I must look into his case it has been 
in court long enough." 

Under date of June 24, 1771, John Adams says : 

Mr. Lowell, who practised much in New Hampshire, gave me 
an account of many strange judgments of the Superior Court at 
Portsmouth During the revolution, the same prac- 
tice of going beyond the courts of law for redress was con- 
tinued; and the form which it took, under the constitution of 
1784, was that of a special act of the Legislature, restoring the 
party to his law, as it was called, that is, giving him a new trial 



62 HARVARD LAW SCHOOL. 

in the Superior Court, after his case had come to its final decision 
in the ordinary course of the law The supposed in- 
terest of lawyers in the multiplication of suits, the litigious spirit 
of parties, ever eager to grasp at new chances of success, and the 
love of power, natural to legislative bodies, all combined to 
render this irregularity in the administration of justice not un- 
acceptable to the public. 

Belknap, in his history, written in 1792, thus describes the legal 
conditions : 

In the administration of justice, frequent complaints were 
made of partiality. Parties were sometimes heard out of 
court, and the practice of watering the jury was familiarly known 
to those persons who had much business in the law. 

While the rude decisions of the courts, based on common sense, 
were, not wholly without value in their influence on the de- 
velopment of the law,(i) nevertheless before a Bench so little 
addicted to legal methods, there was small need or opportunity 
for trained lawyers ; and the Bar of New Hampshire, during the 
whole 1 8th Century, was consequently few in number. Two law- 
yers however may be noted. 

Mathew Livermore, born in 1703, a Harvard graduate of 1722, 
was regularly admitted to the Bar in Portsmouth in 1731, at 
which time, says John Adams, "there was no regularly educated 
lawyer in the town." He became Attorney General in 1755 and 
died in 1776. 

Wiseman Claggett, one of the quaintest geniuses of the whole 
colonial Bar, arrived in Portsmouth in 1758, and was then ad- 
mitted to the bar of the Superior Court. He had been a bar- 
rister in the Inns of Court, and later a practising attorney in 
Antigua in the West Indies. Until the Revolution, he divided the 
business of New Hampshire with Samuel Livermore (later the 
Chief Justice), Claggett receiving most of the criminal business, 
Livermore the civil. 

In 1/58, at the time of the chartering of Dartmouth College, 
there were only eight trained lawyers in New Hampshire; and 
none of them were of such ability as to be retained by President 



(i) As Judge Bell said, in B. C. & M. R. R. v. State, (32 N. H. 231) : 
"We regard the ignorance of the first colonists of the technicalities of the 
common law as one of the most fortunate things in the history of the 
law, since while the substance of the common law was preserved we 
happily lost a great mass of antiquated and useless rubbish and gained in 
its stead a course of practice of admirable simplicity." 



NEW ENGLAND LAWYERS. 63 

Wheelock, he engaging as his counsel, William Smith and William 
Smith, Jr., of New York and John Ledyard, of Connecticut; the 
head of the Bar, William Parker being legal adviser of Governor 
Wentworth. ( I ) 

There was no regular Bar Association until after the Revolu- 
tion. (2) And to 1785, the Bar continued small, not exceeding 
twenty-nine in number ; after that date a new era began. 

In 1786, Jeremiah Smith began practice in New Hampshire. 
He was born in 1759, after having entered at Harvard in 1777, 
and remained for two years, he graduated from Queens (now 
Rutgers College), and studied law at Barnstable, Mass., with 
Shearjashub Bourne. The great Jeremiah Mason, who, born in 
1768, had graduated from Yale in 1788 and studied law in Judge 
Simeon Baldwin's office at New Haven, was admitted to practise 
in 1791, and removed to Portsmouth in 1798. Nine years later, 
his only rival, Danial Webster arrived at Portsmouth. Webster 
was born in 1782, graduated at Dartmouth in 1801, studied in 
New Hampshire, and with Christopher Gore in Boston in 1804, 
admitted to the Bar in 1805. With them may be mentioned 
Arthur Livermore(3), John Prentice (4), George Sullivan (5), 
Ichabod Bartlett(6), John Sullivan (7), Benjamin West(8), Will- 
iam King Atkinson (9), William Plumer(io) and John Picker- 
ing(u). 

(1) See Dartmouth College Cases by John M. Shirley. 

(2) The etiquette of the early lawyers was rather loose. A story is 
told of Claggett, which illustrates the rude condition of the times. Samuel 
Livermore, having advertised in the New Hampshire Gazette the fact 
of moving his office, also the fact that he had Newmarket Lottery tickets 
for sale, Claggett wrote and published : 

"Pray is it not a thing surprising 
To see a lawyer advertising 
Tho' Law's the plea and the intent 
Yet lawyers should quote precedent 
To me it is there's no dispute on't 
A tree's known best by the fruit on't 
So he that sells the choicest wine 
Need have no bush (that is) no sign 
But with the lawyer we agree 
The end of law's a lottery." 

(3) Born in 1766, studied with his brother Edward St. Loe Liver- 
more, Judge of Superior Court 1798, Chief Justice in 1809. 

(4) Born in 1747, Harvard graduate of 1766, studied with Samuel Liv- 
ermore, Attorney General 1787-1793. 

(5) Born in 1771, Harvard graduate of 1790, studied with his father 
Gen. John Sullivan. 

(6) Born in 1768, Dartmouth graduate of 1808, studied with Moses 
Eastman and Parker Noyes, admitted in 1812. 

(7) Born in 1740, studied with Samuel Livermore, 1782-85 Attorney 
General, 1789 Judge of U. S. District Court. 



64 HARVARD LAW SCHOOL. 

By the beginning of the ipth Century, the Bar was one of great 
lustre, so that even Judge Story used to speak of its "vast law 
learning and prodigious intellectual power." (i) In 1805 it con- 
tained 1 06 lawyers, of whom 91 were admitted to practice in the 
Superior Court, 77 of whom were college graduates from 
Harvard 35, Dartmouth 34, Yale 6, Brown 2. 

As professional education spread, and as the science of juris- 
prudence came to be studied, and precedent and authority insisted 
upon, the unprofessional judges disappeared; and Richard Evans, 
appointed in 1809 and removed in 1813, was the last judge not a 
lawyer. 

At the same time, with the appointment of John Pickering as 
Chief Justice from 1790 to 1795, and of Jeremiah Smith as Chief 
Justice in 1802, there arose a new order of things ; and the prac- 
tice of law was reduced to a practical science; and as the court 
said in Lisbon v. Lymun, 49 N. H., "Chief Justice Smith found 
the law of New Hampshire, in practice and administration, a 
chaos, and left it comparatively an organized and scientific system." 



(8) Born in 1746, Harvard graduate of 1768, studied for the ministry, 
admitted 1773. 

(9) Born 1765, Harvard graduate of 1783, studied with John Pickering, 
Judge of Superior Court 1803, Atty. Gen. 1807. 

(10) Born 1759, studied with Joshua Atherton, admitted 1787. 

(n) Born 1737, Harvard graduate of 1761, Chief Justice 1790-95, U. S. 
District Judge 1795-1801. 

(i) "There were giants in the land in those days. It was customary for 
the advocates whose professional aid was in most request at that time to 
attend the courts from county to county through the state, as the leading 
barristers ride the circuit in England. Every important trial was a tour- 
nament in which these celebrated celebrities were matched against each oth- 
er. * * * In the ratio of her population New Hampshire has contributed 
more mental and more moral strength to the bar, to the Senate and to the 
Cabinet of the country than any other state in the Union. That was 
the season of her intellectual greatness. Ichabod Bartlett, the Randolph 
of the north, the brilliant flashes of whose wit, keen sarcasm and 
pungent irony gave life and spirit to the dry judicial discussions 
Sullivan, the fascination of whose happy eloquence still lingers Fletcher, 
whose legal acumen, clear, distinct and precise statement, closely reasoned 
argument and conscious mastery of his subject .adorn no less the bench 
than formerly the bar. Jeremiah Mason, that counsellor of marvelous 
sagacity, unrivalled in his knowledge of human nature, and Daniel Web- 
ster. The collision of such minds invigorated and sharpened the facilities 
whose native temper was competent to sustain the shock. * * It 

was in this school that Judge Woodbury formed and fixed that habit 
which he ever afterwards retained which is the first need though the 
rarest accomplishment of an American statesman, to think continentally." 
Eulogy on Justice Levi Woodbury, by Robert Rantoul, Oct. 16, 1851, 
XIV Law Reporter (1851). 



NEW ENGLAND LAWYERS. 65 

VERMONT. 

The settlers in the New Hampshire Grants (later the State of 
Vermont), were chiefly men who had come thither from Con- 
necticut, Massachusetts and Rhode Island, for the purpose of en- 
joying greater religious freedom ; and they had an instinctive 
prejudice against the institution of courts, which they conceived 
as controlled by the clerical and government interests in the 
Colonies from which they had emigrated. To such an extent was 
this feeling carried, that the Legislature of Vermont, in the first 
seven years of its existence, constituted itself a court of chancery; 
and passed frequent acts, vacating and commuting judgments of 
the courts, and forbidding prosecutions of real or possessory ac- 
tions or actions on contracts; and while this was done to a less 
extent after the constitution of 1786, it still kept up the practice 
of granting new trials, over the heads of the courts. 

It is not surprising that, under these conditions, neither great 
lawyers nor judges were produced in Vermont at this time, and 
that, as Mason says in his autobiography : 

The courts of Vermont then were badly organized and usually 
filled with incompetent men (except C. J. Nathaniel Chipman). 
Most of the members of the bar were poorly educated and some 
of vulgar manners and indifferent morals. 

There were, however, in 1790, a few men of great ability at the 
Bar, like Charles Marsh(i), Stephen R. Bradley (2), Stephen 
Jacob, Royall Tyler (later Chief Justice) (3), and Elijah Paine 
(later U. S. District Judge). (4) 



(1) Born 1765, graduate of Dartmouth in 1786, student at Litchfield 
Law School, U. S. Dist. Atty. 1797- 

(2) Born 1754, Yale graduate of 1775. 

(3) Born 1757, studied with John Adams, 1797 Judge of Supreme 
Court, 1800 Chief Justice. 

(4) Born 1757, Harvard graduate 1781, admitted to the Bar in 1784, 
Judge of Supreme Court 1791-95, U. S. District Judge 1801-42. 

NOTE. See, for authorities in general. 

History of New Hampshire, by Jeremy Belknap (1792). 

Judicial History of New Hampshire before the Revolution, Law Re- 
porter, Vol. XVIII 301. 

Bench and Bar of New Hampshire, by C. H. Bell (1894). 

Life of Jeremiah Mason, by George S. Hillard (1873). 

Life of Jeremiah Smith, by John H. Morison (1845). 

Review of Life of Jeremiah Smith, Law Reporter, Vol. VIII. 

Life of Charles Marsh, by James Barret (1871). 

Address by David Cross in Southern New Hampshire, Bar Assn. Proc., 
Vol. I. 



66 HARVARD LAW SCHOOL. 

RHODE ISLAND. 

The first Chief Justice of Rhode Island, Gideon Cowell, in 
1747, was not a lawyer; the second, Joshua Babcock (a Yale 
graduate of 1724), was a physician; and for one hundred and 
seventy-five years, few of the judges were educated lawyers. 
Even as late as 1819, a farmer was chosen Chief Justice. 

Little is known of the Bar in the i8th Century. The best known 
lawyers were the Attorney Generals, Daniel Updike, in 1722; 
James Honeyman, about 1732; Oliver Arnold in 1766; Henry 
Marchant, in 1770, who studied law with the learned Judge 
Trowbridge of Massachusetts ; William Channing, born in 1727, 
a graduate of Harvard in 1747, a leading lawyer at the time of the 
Revolution, and one of the signers of the Declaration of Inde- 
pendence, Attorney General in 1777. Most of the able lawyers 
at the Bar at that time became Tories James Brenton, Rob- 
ert Lightfoot, a barrister of the Inner Temple, Mathew Robin- 
son, W. G. Simpson, John Usher. 

The real Bar of Rhode Island hardly arose until the time of 
James Burrill, (i) and of Tristam Burgess, (2) in the beginning 
of the i gth Century. 

The one reported case of any historical interest was as late 
as 1786, that of Trevett v. Weeden, involving the paper money 
and stay laws, and distinctive as one of the first cases in which 
an American State Court held a legislative act to be unconstitu- 
tional. It was tried before Chief Justice Paul Mumford, Gen. 



Samuel Lirermore by Charles R. Corning. Graf ton & Coos Co. Bar Assn. 
Proc. 1888. 

Arthur Livermore, by Ezra S. Stearns. Grafton & Coos Co. Bar Assn. 
Proc., (1893)- 

Life of William Plumer, by William Plumer, Jr., (1856). 

Parker, J. in 13 New Hampshire Reports, 536, 557, 558, 560. 

Preface to Chipman's Reports (Vermont) Vol. I. 

(1) Born 1772, graduate of Brown College in 1788, studied in office 
of Theodore Foster and later of David Howell (afterwards U. S. District 
Judge) admitted to practice in 1791, Chief Justice 1816-17. 

(2) Born 1770, studied at Brown College 1793-1797, admitted to the 
Bar in 1799, Chief Justice 1817-18. 

In his Memoirs of Tristam Burgess (1835) Henry L. Bowen says 
"Burrill had no superior in his native state and few in any section of the 
Union." 

Contemporary with Burrill and Burgess were Asher Robbins, William 
Hunter, and Benjamin Hazard. 



NEW ENGLAND LAWYERS. 67 

James M. Varnum and Henry Marchant for the defendant, and 
Henry Goodwin (later Attorney General), for the plaintiff, (i) 

CONNECTICUT. 

In Connecticut, a Superior Court was established in 1711, con- 
sisting of the Chief Justice and four other distinguished members 
of the Council (the higher branch of the Legislature). 

The early judges were seldom trained lawyers. Roger Wol- 
cott, who was judge in 1732 and Chief Justice in 1741, was a 
weaver; Roger Sherman, judge of the Superior Court 1766- 
1789, was in his early days a shoemaker; Jonathan Tnimbull, 
Chief Justice, 1766-1769, began as a minister, and became a 
merchant, incidentally studying law, but never regularly train- 
ed. (2) Oliver Ellsworth, judge of the Superior Court in 1784, 
studied first for the ministry, and so did Jesse Root, Chief Justice 
in 1796. 

Of 1 8th Century lawyers before the Revolutionary war, there 
were comparatively few of distinction or legal training. One of 
the earliest was Thomas Fitch, born in 1699, a graduate of Yale 
in 1721, who codified the laws, became Chief Justice and later 
Governor ; "Probably the most learned lawyer who had ever been 
an inhabitant of the Colony", said the first President Dwight of 
Yale. 

Jared Ingersoll, the elder, born in 1722, a Yale graduate of 
1742, was a trained lawyer and acted as the Colony's agent in 
England. Phineas Lyman, born in 1716, Yale 1738, was also 
eminent about the middle of the Century. 

Nothing illustrates the smallness of the Bar better than the fact 
that when the famous case of Winthrop v. Lechmere 1724-1728, 



(1) Note. For authorities in general, see : 

Gleanings from Judicial History of Rhode Island, by Thomas Durfee, 
R. I. Hist. Soc. Coll., No. 18. 

History of Rhode Island, by Samuel G. Arnold. 

Memoirs of the Rhode Island Bar, by Wilkins Updike (1842). 

Robert Lightfoot, in Loyalists of American Revolution, by Lorenzo Sa- 
bine. 

The Judicial System in Rhode Island, by Amasa M. Eaton Yale Law 
Journal, Vol. XIV. 

The Supreme Court of Rhode Island Green Bag, Vol. II. 

The Supreme Court of Rhode Island, by W. P. Sheffield. 

(2) Born 1710, a graduate of Harvard in 1727. So great was his saga- 
city and ability, that during his long Governorship of the State (1769-1784), 
Washington's constant reliance on his advice, taking the form of "we 
must consult Brother Jonathan," became the foundation of that nickname 
for the United States. 



68 HARVARD LAW SCHOOL. 

arose the case of an appeal from the decision of the Probate 
Judge and of the Superior Court, by a brother claiming the whole 
of the estate of an intestate, in conformity with the Common Law 
of England, and denying the validity of the Connecticut statute of 
descent, which was absolutely inconsistent with the English Com- 
mon Law, no counsel were sent from Connecticut to argue the 
case before the King in Council in London ; but both sides relied 
on English lawyers, Sir Philip Yorke, Attorney General of Eng- 
land (later Lord Chancellor) appearing for the appellant; and 
for the appellee Sir John Willes (later Attorney General and 
Chief Justice of Common Pleas), and a Mr. Booth (of whom 
nothing is known). (i) 

One of the first American lawyers to argue before the King in 
Council, was William Samuel Johnson, who appeared there in 
the famous Mohegan case, involving important landed interests 
in Connecticut. Born in 1727, a Yale graduate of 1744, and 
a doctor of Civil Law at Oxford, he was one of the leaders of 
the Bar in the middle of the Century, and for a long time was 
Colonial Agent in London. Two other lawyers were especially 
prominent in Connecticut before the Revolution. 

Mathew Griswold, born in 1714, who was quaintly described by 
President Stiles of Yale College in 1790, as follows: "Fitted for 
college, settled a farmer, studied law proprio Marte bo't him 
the first considerable Law library, took atty oath and began 
practice 1743 a great reader of law", and who became Chief 
Justice in 1769, succeeding Jonathan Trumbull ; and Roger Sher- 
man, born in Massachusetts in 1721, admitted to practice in 1754, 
made a judge of the Court of Common Pleas in 1759, a member of 
the Council or Upper House in 1766 and also Judge of the Su- 
perior Court, which latter position he held until 1789, the last four 
years being a colleague of Oliver Ellsworth. He was counsel for 
Connecticut in the great struggle, 1770-1782, over Pennsylvania 
lands. In 1783, he was appointed with Richard Law to digest the 



(i) Nine years later, in 1737, when the similar Massachusetts case of 
Phillips r. Savage was argued before the King in Council, only one 
colonial lawyer appeared in the case, Jonathan Belcher of Boston, with 
whom was Sir John Strange (Later Master of the Rolls) ; Sir Dudley 
Ryder (later Lord Mansfield's predecessor as Lord Chief Justice), and 
John Brown, (of whom nothing is known), appearing for the other 
side. See Mass. Hist. Soc. Proc., Vol. V. (1860). 

Mass. Hist. Soc. Proc., Vol. VIII., zd Series (1893). 

The Talcott Papers, Conn. Hist. Soc. Coll., Vol. IV. 

Mass. Hist. Soc. Coll., 6th Series, Vol. V. 



NEW ENGLAND LAWYERS. 69 

statutes. He was head and front of the Revolutionary move- 
ment and one of the Signers. Contemporary with him were, 
James A. Hillhouse( i), Samuel Huntington(2), Eliphalet Dyer 
(3), Richard Law (4), Amos Botsford, Samuel Holden Parsons 
(5), Charles Chauncey (6) and Jesse Root (7). 

During the latter part of the Century the number of lawyers 
greatly increased, as the inhabitants of the State were somewhat 
noted for their litigious character ; and Noah Webster stated that 
the docket of Oliver Ellsworth, in whose office he was a student, 
frequently numbered from 1000 to 150x3 cases, and that during 
the sessions of the court there was scarcely a case tried in which 
he was not of counsel. These cases were small and brought in 
little fees. Jeremiah Mason, of New Hampshire, who graduated 
from Yale in 1788, describes conditions as follows : 

I spent a year in Mr. (Simeon) Baldwin's office in New 
Haven. He married a daughter of the then celebrated Roger 
Sherman His reputation (Mr. S's) was then at the zenith. His 
manners, without apparent arrogance, were excessively reserved 
and aristocratic. 

When I commenced the study of the law was a period of ex- 
treme depression and poverty throughout the country. The pro- 
fession of law felt this depression severely. The State of Con- 
necticut was overstocked with lawyers. Most of them had but little 
business, with fees and compensation measurably small. 

The professional income of Pierpont Edwards, supposed to be 
the largest in the State, was said not to amount to $2000. 

Many of those engaged in the law followed also other occupa- 
tions, such as farming, resuming their practice when the court 
arrived in the county on circuit. 

Among the more prominent Connecticut lawyers after the Rev- 
olution were Noah Webster (8), Zephaniah Swift (9), Simeon 

(1) Born in 1730, a Yale Graduate of 1749. 

(2) Born in 1732, judge of the Superior Court in 1774, one of the 
Signers, of whom it is said "few lawyers enjoyed a more extensive prac- 
tice". 

(3) Born in 1721, a Yale graduate of 1740, Chief Justice, 1789-93- 

(4) Born in 1733, a Yale graduate of 1751, Chief Justice 1786-89. 

(5) Born in 1737, a student with Governor Mathew Griswold, the last 
royal Attorney General. 

(6) Born in 1747, Judge of the Superior Court 1789-93, "for 40 years 
a lecturer on jurisprudence." 

(7) Born in 1736, Princeton graduate of 1756, Chief Justice 1796-1807, 
author of Root's Reports. 

(8) The author of the famous dictionary, born in 1758, graduate of Yale 
in 1778, a student in the office of Oliver Ellsworth, and admitted to the 
Bar in 1781. 



70 HARVARD LAW SCHOOL. 

Baldwin(i), Oliver Wolcott(2), Thomas S. Williams (3), David 
Daggett(4), Roger Griswold(5), Chauncy Goodrich (6), Pierre- 
pont Ed wards (7). 

The greatest Connecticut lawyer of the early igih Century 
was Roger Minott Sherman, who was born in 1773, graduated 
from Yale in 1792, studied in Judge Ellsworth's office and also 
attended lectures of Judge Reeve at his law school in Litchfield, 
admitted to the Bar in 1796. 

MAINE. 

As late as 1770, the only educated lawyers residing in Maine 
were, David Sewall (Harvard 1755), Theophilus Bradbury, 
(Harvard 1757), John Sullivan, James Sullivan (later Atty. 
General and Governor of Massachusetts), William Gushing, 



(9) Born in 1759, Yale 1778; the author in 1795 of the System of Laws 
of Connecticut, and in 1822 of the Digest of Laws of Connecticut, which 
has the distinction of being the first comprehensive view of the English 
Common Law published in America, practically an American digest, Chief 
Justice in 1806-19. 

(1) Born in 1761, a graduate of Yale in 1781, and Judge of the Su- 
perior Court in 1806. 

(2) Born in 1760, a graduate of Yale 1778. 

(3) Born in 1777, a graduate of Yale in 1794, Chief Justice in 1834. 

(4) Born in 1764, a Yale graduate of 1783, and United States Senator 
in 1813, Chief Justice 1834. 

(5) Born in 1762, a Yale graduate of 1780. 

(6) Born in 1759, Yale graduate of 1776, and United States Senator in 

1794- 

(7) Born in 1750, Princeton graduate of 1768. 
NOTE. See for authorities in general : 

Roger Ludlow, by John M. Taylor (1900). 

History of the Judicial System of New England, by Conrad Reno. 
(1900). 

Oliver Ellsworth, by William G. Brown (1905). 

Judicial and Civil History of Conn., by Dwight Loomis and J. G. Cal- 
houn (1895). 

Preface to Kirby's Reports. 

Preface to Root's Reports. 

Lives of the Chief Justices of the U. S., by H. Flanders. 

Roger Sherman, by Lewis Henry Boutelle (1896). 

Phineas Lyman, in Loyalists of the American Revolution, by Lorenzo 
Sabine (1864). 

Roger Minott Sherman, by William A. Beers (1882). 

Sanderson's Lives of the Signers, (2d Edition 1882). 

Yale Men as Writers on Law and Government, by S. E. Baldwin, Yale 
Law Journal, Vol. XL 

Yale in its Relation to Law, by Thomas Thacher, Yale Law Journal, 
Vol. XL 

The Supreme Court of Connecticut, by S. E. Baldwin in The Supreme 
Courts of the States and Provinces (1897). 

Life of Jonathan Trumbull, by J. W. Stuart (1859). 



NEW ENGLAND LAWYERS. 71 

(Harvard 1751), and David Wyer (Harvard 1758), who studied 
with James Otis, Jr., and later became a Tory refugee. 

There were, however, in Portland (then Falmouth), several 
persons of education and clerical habits, who attended the Court 
of Common Pleas to assist parties in their suits Jabez Fox, 
Enoch Freeman the elder, Stephen Longfellow, and Samuel Free- 
man all Harvard graduates. Later, rigid rules adopted by the 
Bar put an end to this practice. 

Although native lawyers were few, the Portland court was 
frequently attended by lawyers from other Colonies, Jeremiah 
Gridley, James Otis, Jonathan Sewall, John Adams, John Lowell, 
Daniel Farnham and John Chipman, from Massachusetts ; and 
Mathew Livermore, Samuel Livermore, William Parker and John 
Sullivan, from New Hampshire. 



CHAPTER IV. 

LAW AND LAWYERS IN THE iSrn CENTURY, IN MARYLAND, VIR- 
GINIA, NEW YORK, PENNSYLVANIA, NEW JERSEY. AND THE 

SOUTHERN STATES. 

The history of the law and lawyers in the Colonies outside of 
New England is much the same as in Massachusetts and Con- 
necticut. 

At first the General Assembly or Legislature constituted the 
court ; later the Governor and his Deputies, and in most Colonies, 
it was not until a half century after settlement that a separate 
and independent court was established. 

In all the Colonies, for nearly a century, the courts were made 
up of merchants or of men of property, with occasionally a lawyer 
as Chief Justice. 

In all the Colonies, except Maryland, the Bar failed to develop 
any strength before the middle of the i8th Century ; and in all the 
Colonies, a decided prejudice existed for many years against law- 
yers and attorneys as a class. It is to be noticed, however, that, 
while in New England this feeling is traceable largely to the 
control exercised by the clergy in administrative matters, in the 
other Colonies it was due chiefly to the jealousy of the merchants 
and wealthy planters at the exercise of power by any other class. 

Thus these three factors the ignorance of the judges, the 
control of the courts by the royal governors, and the strong feel- 
ing against the legal profession in the mind of the public, served 
to retard the growth of the Bar, and its training by any systematic 
methods. 

Towards the beginning of the American Revolution, however, 
the influence of lawyers from Maryland, Pennsylvania, Virginia 
and South Carolina who had received an education in the Inns 
of Court in England produced a great change in the standards of 
ability and knowledge among the members of the Bar in those 
Colonies, and undoubtedly acted as a spur to the development of 
more adequate modes of legal instruction in America. In fact 
a collegiate education was so general among those who made 
their mark at the Bar that it may be said without exaggeration, 



MARYLAND LAWYERS. 73 

that the American lawyer of the late i8th Century and of the 
early I9th Century was the product of the colleges Harvard, 
Yale, Princeton, Brown, Columbia, and the College of William 
and Mary, and of the Inner and Middle Temple in London. 

MARYLAND. 

Maryland, in 1646, about twelve years after its settlement, 
adopted the following "Act for Rule of Judicature" : 

Right and just in all civil causes shall be determined according 
to the law or most general usage of the Province since its planta- 
tion or former presid'ts of the same or like nature to be de- 
termined by the judge. And in defect of such law, usage, or presi- 
dent, then right and just shall be determined according to equity 
and good conscience, not neglecting, so far as the judge of judges 
shall be informed thereof and shall find no inconvenience in the 
application to this Province, the rules by which right and just 
useth and ought to be determined in England in the same or the 
like case. And all crimes and offences shall be judged and de- 
termined according to the law of the Province or in defect of cer- 
tain law then they may be determined according to the best dis- 
cretion of the judge or judges judging as near as conveniently 
may be to the laudable law of usage of England in the same or 
like offences. 

As early as 1662, an act was passed, declaring that when the 
laws of the Province were silent, justice was to be administered 
according to the laws and statutes of England, and that "all courts 
shall judge of the right pleading and the inconsistency of the said 
laws with the good of the province according to the best of their 
judgment." And in 1678, there is a record of a vote in the Gen- 
eral Assembly to purchase Keble's Abridgement of the English 
Statutes and Dalton's Justice of the Peace, for the use of the 
County Courts. 

It is perhaps due to this very early recognition of the Common 
Law that the law and the legal profession seem to have reached 
a higher stage of development in the I7th Century in Maryland 
than in any other American Colony. 

Almost from the beginning, the Province had a series of courts 
based on the English system Courts of Pupowder (Pypoudry) 
or market courts, Courts Baron and Leet, incident to the landed 
estates, County Courts, the Provincial Court, and a Court of Ap- 
peals. 

Although, in 1638, the General Assembly tried many cases, the 



74 HARVARD LAW SCHOOL. 

Provincial Court gradually absorbed all superior jurisdiction. It 
consisted of the Governor and his Council, all appointed by the 
Proprietor or his deputy, and therefore "dependent on the mere 
breath of his nostrils".(i) Its members also composed the 
Upper House of the General Assembly and the Court of Appeals. 

The records of the proceedings of this Court are extant, 
in the first two volumes of Maryland Archives up to 1657, 
and in cases to be found in volumes one and four of Harris 
and McHenry's Reports, covering cases from 1658 to 1776, (these 
being the most ancient of American judicial decisions, with the 
exception of the records of the Massachusetts Court of Assist- 
ants.) 

The lack of lawyers in the composition of the Courts, even as 
late as 1767, is shown in an opinion of Daniel Dulany : 

On perusing the record I am strongly of the opinion that the 
judgment of the Provincial Court ought to be reversed; but what 
may be the opinion of the court of appeals I should be more 
confident in predicting if the judges were lawyers by profession, 
than I am on the consideration that they are not. (2) 

The first lawyer of record, and "father of the Maryland Bar," 
was John Lewger, Attorney for the Lord Proprietary, who landed 
in 1637, three years after the settlement of the Province, and 
whose name appears as counsel in a case that same year. He 
became a member of the Provincial Court, Secretary of the Prov- 
ince, and died in 1648. 

The next attorney of record was James Cauther, in 1637, who 
appeared in a confession of debt. He was a planter as well as 
attorney, and died in 1643. 1 l ^3^> Cyprian Thoroughgood ap- 
peared as attorney in a suit for damages for refusal to furnish 
lumber under a contract. Cuthbert Fenwick (termed in the writ 
for the General Assembly in 1640, "Gent. Attorney") appeared, 
in 1644, to collect a claim for tobacco for a Virginian client. 

Between the years 1634 and 1660 the names of many other at- 
torneys appear of record. (3) 

At this time there appeared also the first American woman law- 
yer, Mrs. Margaret Brent. Not only did she plead in court, but 



(1) See Calvert v. Eden 2 Harris and McHenry 345, 360. 

(2) See Opinion of Daniel Dulaney on the Judgment of the Provin- 
cial Court in West v. Stegar i H. & McH. 247 (1767). 

(3) Thomas Gerrard, Thomas Notley (later Governor), Peter Draper, 
Thomas Mathews, William Harditch, John Weyville, George Manners, 
and most distinguished of all, Giles Brent (later Attorney General). 



MARYLAND LAWYERS. 75 

she insisted on her right to take part in the General Assembly, as 
appears from the following quaint record of that body : 

Jan. 21, 1647-8 came Mrs. Margret Brent in the house for 
herselfe and voyce also, for that att the last court 3rd Jan : it was 
ordered that Mrs. Brent was to be looked uppon and received as 
his Lps (Lordship's) attorney. The Gov'r denyed that the sd. 
Mrs. Brent should have any vote in the howse. And the sd. 
Mrs. Brent protested agst all proceedings in this first Assembly 
unless shee may be pst and have vote as aforesaid. 

In 1659, it was enacted that "the attorneys on both sides speak 
distinctly to one error first before they proceed to the next, with- 
out disturbing each other." 

In 1662, an act was passed forbidding sheriffs, commissioners, 
clerks, and deputy sheriffs, and officers of the court, from prac- 
tising as attorneys in their respective courts. 

By the year 1669, the attorneys had so increased as to occasion 
a report by a Committee of the Lower House of the Assembly 
"that the privileged attornies are one of the great grievances of 
the country." Charges of impeachment were preferred against 
one John Morecraft for having taken fees on both sides of 
a case and also for "that he is retayned as attorney for some, 
with unreasonable fees, for a whole year's space, so that by 
that means it causes several suits to the utter ruin of people." 
The Upper House, however, dismissed the charges, expressing 
its wonder that "attornies of ability and sworn to be diligent 
and faithful in their places and offices" should be "called a griev- 
ance, nay the grand grievance of the country." 

In 1674, an act was passed declaring 

the abuse of severall persons in this Province practising as 
attorneys and solicitors at Law by taking and exciting excessive 
fees for their clients, whereby the good people of this province 
are much burthened and their causes much delayed, and by the 
great number of attorneys whereby many and unnecessary and 
troublesome suits are raysed and fomented; 

and providing that thereafter only a "certain number of honest 
and able attorneys be admitted, nominated and sworn" by the 
Captain General to be attorneys and councillors, and all others 
to be forbidden to practice. Fees were regulated, the highest 
being 800 pounds of tobacco in the Court of Chancery, 400 
pounds in the Provincial Court, and 200 pounds in the County 



76 HARVARD LAW SCHOOL. 

Courts. Heavy fines and the penalty of disbarment were im- 
posed for demanding or receiving more than the legal fees. 

And in 1715, a comprehensive act was passed "for rectifying 
the ill practices of attorneys of this province and ascertaining 
fees", providing that no person should practise law without being 
admitted thereto by the justices of the court, establishing rates 
of fees, and providing against neglect of duty. At the same 
time court rules required gowns to be worn by both lawyers and 
judges. 

In 1721 and 1722, laws were passed to punish attorneys who 
by neglect of their duties caused loss to their clients. 

The natural jealousy against lawyers, entertained by all agri- 
cultural communities, culminated in 1725, in an act regulating 
lawyers' fees with extreme strictness, and giving an option to the 
planter to pay in tobacco or in currency at a fixed rate. Against 
this act, a petition was presented in the Upper House by Daniel 
Dulany Senior, Thomas Bordley, Joshua George and Michael 
Howard, "late practitioners of the law", alleging the act to be de- 
structive of their privileges as British subjects. 

This petition is of vital interest as being one of the first of the 
series of struggles by the colonists to maintain their rights under 
the English Laws and Constitution ; it was followed by the pub- 
lication by Dulany, in 1728, at Annapolis, of his famous 
pamphlet, The right of the Inhabitants of Maryland to the Benefit 
of the English Lazvs. 

In 1729, when the act was extended for three years, the law- 
yers petitioned the Proprietor in London against it, employing 
John Sharpe, a barrister of Lincoln's Inn, as their counsel. The 
Proprietor gave his dissent, on the ground that such a law "was 
not agreeable to any known law here", and to his dissent was ap- 
pended the opinion of the then Attorney General of Great Britain, 
Philip Yorke (later the great Lord Chancellor Hardwicke). 

Of the Bar of the early i8th Century, this Daniel Dulany the 
elder stood at the head, born about 1680, educated at the Univer- 
sity of Dublin, admitted to the Bar of the Provincial Court in 
1710, barrister of Gray's Inn in 1716, later Attorney General of the 
Province. 

Others of prominence were Charles Carroll, born in 1660, edu- 
cated at the University of Douai in France and in the Inner 
Temple in London, who came to Maryland in 1688, as Attorney 
General vigorously resisted the attempt to overthrow Lord Balti- 



MARYLAND LAWYERS. 77 

more's Government, was arrested for high misdemeanor by the 
Royal Governor, and died in 1720; Robert Ridgely ; Col. Henry 
Jowles, a barrister, and Chancellor of the Province in 1697; 
Griffith Jones and Stephen Bordley. (i) 

The greatest of Maryland's lawyers before the American Rev- 
olution was undoubtedly Daniel Dulany the younger, born in 
1721, educated in the Temple, and admitted to the Bar in 1747. 
So extended became his reputation that he was consulted on 
questions of jurisprudence by eminent lawyers in England; and 
cases were frequently withdrawn from Maryland courts, and 
on one occasion even from the Chancellor of England, to submit 
to him and abide by his award. His opinions, like those of his 
father, were deemed of such weight that many of them were in- 
cluded with reports of decided cases, when law reports were first 
printed in Maryland in 1809. (2) 

At the time of the Stamp Act agitation, he was hailed as the 
William Pitt of Maryland, because of his famous pamphlet on 
Considerations on the Propriety of imposing taxes on the British 
Colonies for the purpose of raising a revenue by Act of Parlia- 
ment, published at Annapolis, Oct. 14, 1765. 

Of Dulany, William Pinkney said, a few years after the Revo- 
lution, "Even amongst such men as Fox, Pitt and Sheridan, he 
had not found his superior". 

Noted also among the Maryland lawyers who opposed the 
Stamp Act was Samuel Chase, "the torch that lighted up the 
revolutionary flame in Maryland". He was born in 1741, studied 
at Annapolis, admitted to the Bar in 1763, Signer of the Decla- 
ration of Independence and later Judge of the United States 
Supreme Court. Prominent also was the Scotch lawyer, George 
Chalmers, who came to Baltimore in 1763 from Edinburgh, and 
who, after his return to England in 1775, became noted as a law 

(1) In 1692, it is recorded that on the assembling of the Provincial 
Court after the Protestant Revolution, George Plates, Griffith Jones, Will- 
iam Dent, Samuel Watkins and Philip Clark took the new test oath and 
on motion the court limited the number of attorneys to be allowed to 
practice. 

(2) Samuel Tyler in his Memoirs of Roger Brooke Taney (1872) says 
"The opinions of Daniel Dulany had almost as much weight in court in 
Maryland, and hardly less with the court lawyers of England, than the 
opinions of the great Roman jurists that were made authority by edict 
of the Emperor, had in Roman court. This was due, in some degree, to 
the fact that there were no reports of Maryland decisions until 1809. 

The high reputation of this great lawyer stimulated the ambition 
of the Maryland bar, while his opinions were models of legal discussion 
for their imitation." 



78 HARVARD LAW SCHOOL. 

writer, his Opinions of Eminent Lawyers on various points of 
English jurisprudence concerning the Colonies, Fisheries and 
Commerce of Great Britain being of especial interest to students 
of Colonial law. 

In 1773, the Royal Governor Eden's attempt to fix the fees 
of state officials by proclamation aroused all defenders of the 
sole right of the people to legislate. In the bitter struggle 
which arose the full strength of the ante-Revolutionary Bar of 
Maryland was engaged, Daniel Dulany, Charles Gordon, John 
Hammond taking the side of the Crown, and Charles Carroll (i), 
Samuel Chase, Thomas Johnson (2), Thomas Stone (3), and 
William Paca (4) being prominent in behalf of the Colony's 
rights. 

The lawyers of Maryland after the Revolution will be men- 
tioned later in this book. 

NOTE. 

For authorities in general see : 

Glance at our Colonial Bar, Green Bag, Vol. XI. 

Adoption of English Law in Maryland, Yale Law Journal, Vol. 
VIII. 

Bar of Early Maryland, Green Bag, Vol. XII. 

Studies in the Civil, Social and Ecclesiastical History of Early 
Maryland, by Theodore C. Gambrall, (1893). 

Historical View of the Government of Maryland, by John Van 
L. McMahon, (1831.) 

Maryland Jurisprudence, American Jurist, Vol. XV. 

Maryland Archives, Procedings and Acts of the General As- 
sembly. 

Some Characteristics of the Provincial Judiciary, by Charles 
E. Phelps, Maryland Bar Association Report, Vol. II (1897.) 

The Founders of the Bar of Maryland, by Elihui S. Riley, 
Maryland Bar Assn. Report, Vol. II, (1897.) 

The Courts and Bench of Colonial Maryland, Maryland Bar 
Assn. Report, Vol. Ill, (1898.) 

Development of the Legal Profession 1669-1715, by Elihu S. 
Riley, Maryland Bar Assn. Report, Vol. IV, (1899.) 

(1) Born in 1737, studied in the Temple in London, later in Paris 
and returned to reside at Carrollton in 1764, Signer of the Declaration. 

(2) .Born in 1732, later first governor of the State of Maryland, and 
judge of the U. S. Supreme Court in 1791. 

(3) Born in 1743, studied law under Johnson, Signer of the Declara- 
tion. 

(4) Born in 1740, graduate of the College of Phila. in 1759, studied 
law for four years under Stephen Bordley, admitted to the bar in 1764, 
Chief Justice in 1778, Governor in 1782, Judge of the U. S. District Court 
in 1789, Signer of the Declaration. 



VIRGINIA LAWYERS. 79 

Luther Martin as a Lawyer and Lover, by Robert F. Brent, 
Maryland Bar Assn. Report, Vol. IV, (1891.) 

Luther Martin by Henry P. Goddard, Maryland Hist. Soc. 
Proc., (1887). 

Economics and Politics in Maryland, 1720-1750, and Public 
Service of Daniel Dulany the Elder, by St. George Leakin Sious- 
sat in Johns Hopkins Univ. Studies in Historical and Political 
Science Series, Vol. XXI (1903). 

Beginnings of Maryland, by Bernard A. Steiner in Johns Hop- 
kins Univ. Studies in Historical and Political Science Series, Vol. 

XXI, (1903). 

The English Statutes in Maryland, in Johns Hopkins Univ. 
Studies in Historical and Political Science Series, Vol. XXI, 

(I993)- 

Life of George Chalmers in Loyalists of American Revolution, 

by Lorenzo Sabine (1864). 

Life of William Pinkney, by Rev. William Pinkney (1863). 

VIRGINIA. 

Of all the Colonies, Virginia was the most truly British in its 
institutions and modes of life. The presence of what was prac- 
tically a landed aristocracy tended towards conservatism. 

As one old writer has quaintly said : 

If New England be called a Receptacle of Dissenters and an 
Amsterdam of Religion, Pennsylvania the nursery of Quakers, 
Maryland the Retirement of Roman Catholics, North Carolina 
the refuge of Runaways and South Carolina the Delight of Buc- 
caneers and Pyrates, Virginia may be justly esteemed the happy 
retreat of true Britons and true Churchmen for the most part 
neither soaring too high nor drooping too low ; consequently should 
merit the greater esteem and encouragement. 

Story in his Commentaries on the Constitution remarks that : 

The laws of Virginia during its colonial state do not exhibit 
as many marked deviations in the general structure of its institu- 
tions and civil polity from those of the parent country as those in 
the northern colonies. The common law was recognized as the 
general basis of its jurisprudence and expressly provided for in 
all the charters and was in its leading features very acceptable 
to the colonists. 

Sir William Berkeley in 1671, in his answer to the Lord Com- 
missioners, said : 

Contrary to the laws of England we never did, nor dare, to 
make any (law), only this, that no sale of land is good and legal 
unless within three months after the conveyance it be recorded. 



8o HARVARD LAW SCHOOL. 

Hugh Jones, in his Present State of Virginia, wrote in 1724 
that the Province was 

ruled by the Laws customs and constitution of Great 
Britain which it strictly observes, only where the circum- 
stance and occasion of the country by an absolute necessity 
requires some small alteration which nevertheless must not be 
contrary (though different from and subservient) to the Laws 
of England. 

A collection of laws containing 61 acts was made as early as 
1632; in 1643 a new code was passed; in 1656-58 there was a 
second revision containing 131 acts, and a third revision in 1662. 
The preamble to this last act was the first legislative recognition 
of the Common Law: 

We have endeavored in all things (as near as the capacity and 
constitution of this country would admit) to adhere to these 
excellent and often refined laws of England to which we profess 
and acknowledge all our obedience and reverence. 

For a long period the laws existed only in manuscript; and in 
1671, Sir William Berkeley, the staunch, conservative, royal gov- 
ernor, wrote : 

But I thank God there are no free schools nor printing and I 
hope we shall not have these hundred years; for learning has 
brought disobedience and heresy and sects into the world, and 
printing has divulged them and libels against the best govern- 
ments. God keep us from both. 

The earliest surviving evidence of printing done in Virginia is 
the edition of Revised Laws in 1733, three years before the estab- 
lishment in 1736 of the first Virginia newspaper, the Gazette. 

The only court of law for some years was the General As- 
sembly. This body, composed of twenty-two elected burgesses 
and the Governor and Council, convened at Jamestown July 30, 
1619, the first English legislative body in America; and on the 
second day of its sitting constituted itself a Court to try one 
Thomas Garret for indecent behavior. In 1643, a judicial system 
was established, much resembling that of Massachusetts, con- 
sisting of County Courts, (begun in 1623-24) composed of 
local wealthy planters, and the Quarter Courts (or General Court 
as they were termed, after 1662) composed of the Governor and 
his Councillors (thirteen in number at first, later nineteen, and still 



VIRGINIA LAWYERS. 81 

later sixteen). There was also an appeal in some matters to the 
General Assembly. 

Jefferson, in the preface to his Reports, states that the General 
Court was "chosen from among the gentlemen of the country 
for their wealth and standing without any regard to legal knowl- 
edge"; and as late as 1781, Lord Culpepper, in his statistical ac- 
count of Virginia said(i) : 

There was much confusion in the laws and it was difficult to 
know what the laws were. All causes were decided in the County 
Court or in the General Court. The County Court consisted of 
8 or 10 gentlemen appointed by the Governor, annually. They 
had no education and fell into many mistakes. 

Campbell in his history of Virginia says : 

The insufficiency of these courts was now growing more appar- 
ent than formerly, since the old stock of gentry who were edu- 
cated in England were better acquainted with law and with the 
business of the world than their sons and grandsons who were 
brought up in Virginia and commonly knew only reading, writing 
and arithmetic, and were not very proficient in them. 

Anthony Stokes, Chief Justice of Georgia, in 1783, in his View 
of the Constitution of the British Colonies of North America and 
the West Indies, states that in the Colonies where a system of 
County Courts prevailed and where there were a large number of 
judges in general unacquainted with the law, little decorum was 
observed; in Colonies where judges went on circuit there was 
more impartial administration of justice. 

As early as 1661-2, an act was passed regulating very precisely the 
proceedings of the courts, the forms of opening and closing, and 
requiring all declarations, answers and evidence to be preserved. 

In the 1 7th Century the problem of how to deal with attorneys 
appears to have perplexed Virginia more than any other Colony. 

As early as 1642-43. under an act "for the better regulating 
of attorneys and the great fees exacted by them", fees were con- 
fined to 20 pounds of tobacco in the County Court and 40 pounds 
in the Quarter Court; they were forbidden license to plead in 
more courts than the "Quarter Court and one County Court" ; 
and they could not refuse to be "entertayned in any cause" under 
heavy fines to be paid in tobacco. This act, however, did not 



(i) See Mass. Hist. Soc. Coll., ist Series, Vol. V. 
e 



82 HARVARD LAW SCHOOL. 

apply to "such as shall be made special attorneys nor to such as 
shall have letters of procuration out of England." 

In 1645, it was provided that "whereas many troublesome suits 
are multiplied by the unskill fulness and covetousness of Attor- 
neys who have more intended their own profit and their inordi- 
nate lucre than the good and benefit of their clients be it there- 
fore enacted that all Mercenary Attorneys(i) be wholly expelled 
from such offices"; and in 1647, the Courts, if "they perceived 
that either party was like to lose his cause by his weakness" were 
themselves to "open the case" or "to appoint some fitt man out of 
the people to plead the cause and not allow any other attorneys 
in private causes betwixt man and man in the country" ; and at- 
torneys were forbidden to "take any recompence either directly or 
indirectly." This Mercenary Attorney Act was repealed in 1657 
and provision made for licensing attorneys ; the next year, how- 
ever, trouble apparently having again arisen, all fees were 
taken away from attorneys. "Since these mercenary attorneys 
maintain suits in law to the great prejudice and charge of the 
inhabitants of this colony", they were forbidden "to plead in any 
court or give counsel in any cause or controversy, for any kind of 
reward or profit", on penalty of 5000 pounds of tobacco, and were 
required to swear, when they appeared in any cause, that they had 
not violated this Act, "because the breakers thereof through their 
subtility cannot easily be discerned." 

In 1680, a law was passed allowing attorneys to practise under 
rigid restrictions. Fees were fixed at 500 pounds of tobacco 
(about $15 $20) in the General Court, and 150 pounds in the 
County Court. 

In 1686, it was enacted that no person should appear in any 
court as attorney, without first obtaining a license from the gov- 
ernor : 

Inasmuch as all courts in the country are many times hindered 
and troubled in their judicial proceedings by the impertinent dis- 
courses of many busy and ignorant men who will pretend to as- 
sist their friend in his business and to clear the matter more 
plainly to the court, although never desired nor requested there- 
unto by the person whom they pretend to assist and many times 
to the destruction of his cause and the great trouble and hind- 
rance of the court. 



(i) The word "Mercenary" here meant only "serving for pay or 
fees". It did not have the opprobrious definition later given to the word. 



VIRGINIA LAWYERS. 83 

This act, being found "inconvenient", was repealed the next 
year; but the repealing act was itself repealed by royal proclama- 
tion. 

In 1742, an act was passed to prevent lawyers from exacting 
or receiving exorbitant fees. 

All this legislation was directed probably not so much against 
the legal profession itself, as against the character of the men who 
composed it. Most of the attorneys were mere charlatans, men 
of no character or influence. As Judge Minor said in his 
Institutes, (i) "for fully a century, the lawyer seems to fortune 
and to fame unknown", not one of them having attained a 
notoriety or distinction worthy of a biographer. John Fiske 
says that "they were frequently recruited by white freedmen, 
whose career of rascality as attorneys in England had suddenly 
ended in penal servitude". Although this statement is unqualifiedly 
denied by a Virginia lawyer, claiming that there are no records 
to sustain it, (2) there is record in 1736 of one, Henry Jus- 
tice, an English barrister of the Middle Temple, who was con- 
victed of stealing a Bible and other books from Trinity College 
Library in Cambridge and sentenced to transportation to Vir- 
ginia. (3) 

The fact undoubtedly is that the business in the courts was so 
simple and so exclusively confined to commercial matters (actions 
of debt and on bonds), that litigation was entrusted to the prom- 
inent officials and wealthy merchants and planters (4). The 
business was not lucrative enough to attract educated English law- 
yers. Moreover, Virginia was a rural community, and like all 
such, was jealous of special classes of men. 

In the 1 7th Century, Nathaniel Bacon, the leader of Bacon's 
Rebellion in 1675, who had studied law in the Temple, William 
Byrd, Receiver General of the Royal Revenue, and Benjamin 

(1) Minor's Institutes, Vol. IV., p. 168. (1875). 

(2) Lawyers of the i?th Century, William & Mary College Quar- 
terly, Vol. VIII. 

(3) Old Virginia, Vol. II., by John Fiske. 

(4) Thus in York County Records, of the names of 13 men who ap- 
peared on the docket as attorneys between 1640 and 1675, with the ex- 
ception of William Sherwood (who was a trained lawyer) and John 
Holdcraft and William Swinnerton, all were either planters or mer- 
chants prominent in the community; Francis Willis, James Bray, Thomas 
Bullard, John Page, and Daniel Parke becoming members of the Vir- 
ginia Council; William Hockaday, Thomas Bushrod, Dr. Robert Ellyson, 
Gideon Macon being at different times members of the House of Bur- 
gesses and Karbry Kiggars. (See William & Mary College Quarterly 
Vol. VIII. 



84 HARVARD LAW SCHOOL. 

Harrison, Speaker of the House of Burgesses, appear to have 
been the only trained lawyers with the exception of the King's 
Attorney Generals. 

In the early i8th Century, many of the Virginia lawyers had 
received an Inns of Court education. Prominent among them 
were William Byrd of Westover, who, born in 1674, studied law 
in the Middle Temple, collected the finest library in the American 
Colonies, and died in 1743; Edward Barradale, who had been 
Judge of Admiralty and a member of the Council and Attorney 
General, and died in 1743; William Hopkins, a well educated law- 
yer who practised in Virginia for twelve years ; Sir John 
Randolph, born in 1692, who graduated at the college of William 
and Mary, became a barrister of Gray's Inn at London, was made 
Attorney General for the Colony, argued the cause of the Colony 
in England in 1752 and ranked as one of the greatest practitioners 
in America ; Stevens Thomson, one of the early Attorney Gen- 
erals, and John Ambler, who practised between 1735 and 1766, 
both of whom had studied in the Middle Temple. 

The lawyer of largest general reputation in these early times 
was probably John Holloway, who had been an attorney of the 
Marshalsea Court in London. For thirty years he practised 
with great success in Virginia ; and for fourteen years was 
Speaker of the House of Burgesses. He was described by Sir 
John Randolph as distinguished more for learning and as rely- 
ing more upon the subtle artifice of an attorney than the solid 
reasoning of a lawyer. His opinions, however, were looked upon 
as authoritative, and his fees were exorbitant. He died in 1734. 

The years 1750-1775 witnessed a marked growth in the size 
and ability of the Virginia Bar ; and there arose a group of law- 
yers, most of whom were educated either at Princeton, William 
and Mary, or in the English Universities or Inns of Court, and 
whose political and legal talents placed Virginia in the forefront 
of the American Colonies. Among these were Peyton Randolph ( I ) , 
John Randolph(2), Edmund Pendleton(3), John Blair(4), John 



(1) Born in 1721, a graduate of Oxford, of the Inner Temple, King's 
Attorney General in Virginia, in 1748, President of the first Congress in 

1774- *M 

(2) Brother of Peyton, born in 1728, educated at William and Mary 
and the Inner Temple, Attorney General in 1766, "One of the most splen- 
did monuments of the Bar" says Wirt, "A polite scholar as well as a 
profound lawyer", and who left Virginia in 1775 as a Tory refugee. 



VIRGINIA LAWYERS. 85 

Lewis(i), George Wythe(2), Robert Carter Nicholas(3), 
Thomas Jefferson (4), John Tyler(s), Dabney Carr(6), Peter 
Lyons, George Johnson, Paul Carrington, George Mason (7), 
and Richard Henry Lee (8). 

The most noted of all the early lawyers was, admittedly, Pat- 
rick Henry, who, born in 1736, and admitted to the Bar in 1760, 
leaped into instant fame by winning, in 1764, the famous Par- 
sons Case. (5) 

This Virginia Bar was thus interestingly summed up by St. 
George Tucker in a letter to William Wirt in 1813 : 

Literary characters may leave their works behind them, 



(3) Born in 1721, was examined and licensed to practise law "by the 
eminent lawyer Barradale" in 1744, Chief Justice of Virginia Court of 
Appeals in 1779. 

(4) Born in 1732, a student in the Temple, in 1779 Chief Justice Vir- 
ginia General Court, in 1789 Judge of the United States Supreme Court. 

(1) In whose office the eminent George Wythe studied. 

(2) Born in 1726, admitted to the Bar in 1756, Professor of Law in 
1780 in the College of William and Mary, sole chancellor of the Court 
of Equity in 1788, the legal teacher of Jefferson, who called him "my 
faithful and beloved mentor in youth and my most affectionate friend 
through life", instructor also of Marshall, Madison and Monroe, of whom 
Wythe once remarked that "all three would at least become 'Minent.' 

(3) Born in 1715, and later Judge of Court of Appeals and Attorney 
General. 

(4) Born in 1743, admitted to the bar in 1767, after nearly five years 
study and preparation in the office of George Wythe and others. 

(5) Born in 1747, studied law in office of R. C. Nicholas, later Gov- 
ernor of Virginia and United States District Judge. 

(6) Born in 1743. 

(7) Born in 1725, the author in 1776 of the Virginia Constitution, 
the first written constitution of a free commonwealth, pronounced by Mad- 
ison in the debates on the Federal Constitution, "the ablest man in debate 
he had ever seen." 

(8) Born in 1732, a student in the Temple, returned to Virginia in 1752, 
never actively practised. 

(9) This case is interesting as an illustration of the fact that prac- 
tically all the cases in which American lawyers in the iSth Century 
gained distinction, were of a political nature. The facts were, that as 
far back as 1696, each minister of a parish had been provided with an 
annual stipend of 16,000 pounds of tobacco, at ten shillings eight pence 
per 100 pounds. In 1755, the tobacco crop fell short; and the Legis- 
lature passed an act, to continue for ten months, allowing persons from 
whom any tobacco was due, to pay in tobacco or in money at the rate of 
sixteen shillings eight pence per 100 pounds, at the option of the debtor. 
Rich planters benefited by paying their debts at this rate and getting from 
fifty to sixty shillings for their tobacco. 

In 1758, on a surmise of a short crop, a similar act was passed. The 
price rose to fifty shillings. The King in Council denounced the .act as 
a usurpation. The Clergy resolved to test the question, and suit was be- 
gun by Rev. James Maury against the Collector of the County, in 1762 
with Peter Lyons for the Plaintiff and the able and widely known John 
Lewis for the Defendant. The first trial resulted in a victory for the 
plaintiff ; the second was won by Patrick Henry for the defendant. 



86 HARVARD LAW SCHOOL. 

as memorials of what they were ; soldiers may obtain a 
niche in the temple of Fame, by some brilliant exploit ; orators, 
whose speeches have been preserved, will be remembered through 
that medium; judges, whose opinions have been reported, may 
possibly be known to future judges, and members of the bar; 
but the world cares little about them; and if they leave no re- 
ports, or meet with no reporter to record their opinions, etc., 
they sink into immediate oblivion. I very much doubt if a single 
speech of Richard H. Lee's can be produced at this day. Never- 
theless, he was the most mellifluous orator that ever I listened to. 
Who knows any thing of Peyton Randolph, once the most pop- 
ular man in Virginia, Speaker of the House of Burgesses, and 
President of Congress, from its first assembling, to the day of 
his death? Who remembers Thompson Mason, esteemed the 
first lawyer at the bar? Or his brother, George Mason, of whom 
I have heard Mr. Madison, (the present President), say, that he 
possessed the greatest talents for debate of any man he had ever 
seen, or heard speak. What is known of Dabney Carr, but that 
he made the motion for appointing committees of correspondence 
in 1773? Virginia has produced few men of finer talents, as I 
have repeatedly heard. I might name a number of others, highly 
respected and influential men in their day. The Delegates to the 
first Congress, in 1774, were Peyton Randolph, Edmund Pendle- 
ton, Patrick Henry, George Washington, Richard H. Lee, Rich- 
ard Bland and Benjamin Harrison. Jefferson, Wythe and Madi- 
son did not come in till afterwards. This alone may show what 
estimation the former were held in: yet, how little is known of 
one-half of them at this day? The truth is, that Socrates him- 
self would pass unnoticed and forgotten in Virginia, if he were 
not a public character, and some of his speeches preserved in a 
newspaper : the latter might keep his memory alive for a year or 
two, but not much longer. (i) 

Perhaps the most important contribution to legal science made 
by the Virginia Bar was in the Revision of the Statutes, by a 
Commission, consisting of Jefferson, Pendleton, Wythe and 
George Mason (T. L. Lee not being a lawyer withdrawing), on 
whose report, and, largely by the efforts of James Madison, a 
complete new code, the first thorough revision of the whole law 
ever made in America, was established for Virginia in 1785. 

Of the Virginia Bar after the Revolution, besides those already 
mentioned, five men stand out pre-eminently : John Marshall, who 
was born in 1755, attended the law lectures of Chancellor Wythe 
at William and Mary College in 1779, and was admitted to the 
Bar in 1780; Edmund Randolph, born in 1743, son of John 

(i) Memoirs of William Win, by John P. Kennedy (1849). 



VIRGINIA LAWYERS. 87 

Randolph, and nephew of Peyton Randolph, in 1789 the first 
Attorney General of the United States, and undoubtedly the head 
of the Southern Bar ; St. George Tucker, who came to Virginia 
in 1770, studied law at William and Mary College, in 1788 Judge 
of the Court of Appeals, and afterwards Professor of Law in 
William and Mary College ; John Tyler, father of President John 
Tyler, born in 1747, who studied with Robert Carter Nicholas 
and became L'nited States District Judge ; and Spencer Roane, 
born in 1762 and educated at the College of William and Mary 
under Chancellor Wythe, one of John Marshall's chief rivals at 
the Bar, and Judge of the Court of Errors of Virginia in 1794. 

During the latter years of the Century, a sixth eminent Vir- 
ginian lawyer came to the Bar Henry Clay, who, born in 1777, 
became, at the age of fifteen, a small clerk in the High Court of 
Chancery, where he attracted the attention of Chancellor George 
Wythe, for whom he acted four years as amanuensis, and after 
a year's study of law in the office of Governor Brooke, Attorney 
General of Virginia, was licensed to practice, in 1797. 

NOTE. 

For authorities in general see : 

History of the Colony and Ancient Dominion of Virginia, by 
Charles Campbell, (1860). 

History of Virginia, by R. R. Howison, (1846). 

History of Virginia Codification, Virginia Law Register, 
Vol XI." 

Hildreth's History of the United States, Vols. I and II. 

Court and Bar of Colonial Virginia, - - Green Bag, Vol. X. 

Old Virginia, by John Fiske, Vol. II, (1897). 

Virginia Lawyers, Green Bag, Vol. X. 

Lawyers in Virginia betzveen 1704 and 1737, , Virg. Law 
Reg., Vol. I, (1877). 

Virginia Historical Register, Vol. I, p. 119 et seq. 

Speech of Charles M. Blackford in Proceedings of Virginia 
Bar Association, Vol. VII (1898). 

Glance at Our Colonial Bar, Green Bag, Vol. XIII. 

Thomas Jefferson as a Lawyer, Green Bag, Vol. XV. 

Patrick Henry as a Lazvyer, - - Green Bag, Vol. XVI. 

Virginia Lawyers, Green Bag, Vol. X, Nos. i, 2, 3. 

Sketches of the Life and Character of Patrick Henry, by Wil- 
liam Wirt (1817). 

Edmund Randolph, by Moncure D. Conway (1888). 

John Randolph of Roanoke, by Hugh A. Garland (1851). 



88 HARVARD LAW SCHOOL. 

Henry Clay as a Lawyer, Law Reporter, Vol. XV (1852). 

Local Institutions of Virginia, Johns Hopkins University 
Studies in Historical and Political Science, 3d series (1885). 

Our Judicial System, by Benjamin Watkins Leigh. Proc. 
Virginia Bar Association, Vol. I (1889). 

County Courts in Virginia, Proc. Virginia Bar Association, 
Vol. VI (1894). 

The General Court of Virginia, Proc. Virginia Bar Association, 
Vol. VII (1895). 

Life of Chancellor Wythe in Wythe's Cases in Chancery, (1852 
edition). 

Letters and Times of the Tylers, by Leon G. Tyler (1884). 

Discourse on the Life and Character of Hon. Littleton Waller 
Taze^vell, by Hugh Blair Grigsby (1860). 

Preface to Virginia Statutes, by William Waller Henings 
(1809). 

NEW YORK. 

Under the Dutch rule in New York, 1653-1664, the judicial 
functions were exercised by the Burgomasters and Schepens of 
New Amsterdam, in much the same way as in Massachusetts by 
the Great and General Court. 

In 1664, when New Amsterdam became "New Yorck", the 
Court of Mayor and Aldermen for the City of New York was 
substituted. A code of law and practice commonly known as the 
"Duke's Law," was at once promulgated, in October, 1664. 
It was largely prepared by Mathias Nichols, an English 
barrister of Lincoln's Inn, and Secretary of the Province, 
from suggestions made by Lord Chancellor Clarendon and was 
compiled from the Common Law, the Dutch Colonial Law, and 
the local laws in force in the New England Colonies, fixing very 
precisely and elaborately the details of the courts, land tenure, 
police regulations, taxes, and religious liberty. 

In 1673, the Dutch again conquered New York, and reverted at 
once to their old laws. In 1674, however, Sir Edmund Andros 
returned to reclaim the English rule, and as Governor, restored to 
New York, by proclamation, the "known books of laws formerly 
establisht". 

No digest of the Colony laws was made until that of William 
Livingstone and William Smith, Jr., in 1752, comprising all the 
statutes passed between 1691 and 1751. A second edition was 
compiled by Peter Von Schaack in 1773. 

In 1691, a Superior Court was constituted, consisting of a 



NEW YORK LAWYERS. 89 

Chief Justice, Joseph Dudley of Massachusetts, and four assist- 
ant judges, all appointed by the Royal Governor, and holding 
office "during his pleasure". 

In addition there were Courts of Justice of the Peace, of Ses- 
sions, and of Common Pleas, and curiously, just at this time, when 
Courts of Pypowdry (Market Courts) were dying out in England, 
they were revived in New York in 1692, and as late as 1773 were 
extended to the new counties. The privilege of a Court Leet and 
Court Baron also was attached to many of the old manor holding 
families, such as the Livingstones, Van Renselaers, Courtlandts, 
Philips and Beekmans. 

As in other Colonies, none of the judges were men of legal 
training except the Chief Justices : and of the latter the only 
lawyers of distinction were Colonel Lewis Morris, who was Chief 
Justice in 1720, of whom it was said that "no man in the Colony 
equalled him in the knowledge of the law" ; Lieutenant Governor 
James Delancey, Chief Justice in 1733, a barrister of the Inner 
Temple of whom it was said, "His knowledge of law, history, and 
husbandry excepted, the rest of his learning consisted only of 
that small share of classical scholarship which he had acquired at 
Cambridge and by a good memory retained. He was too indolent 
for profound researches in the law" ; Benjamin Pratt, who came 
from Massachusetts as Delancey's successor, in 1761 ; and Will- 
iam Smith, Jr., a Yale graduate, who was Chief Justice for a short 
time in 1763. 

Jurists could not be found in New York to accept places on 
the bench (except for temporary purposes) "during his Majesty's 
pleasure" : and though the Assembly many times sought to compel 
the appointment of judges during good behavior. Governor Colden 
and the other royal Governors vetoed all such measures. 

The first lawyer of New Amsterdam was Dirck Van Schel- 
luyne, in 1653. He had obtained in Holland a license to practice, 
but, there being no other lawyers in the new city to fight, and 
consequently no suits, he performed the duties of notary, kept a 
grocery store, and finally, becoming discouraged, left the city. 
In the early days of the English occupation, the estimation in 
which lawyers were held will appear from the following entry 
on the Minutes of the Council, held at the Stadt Huys on May 
16, 1677: 

Query? Whether attorneys are thought to be useful to plead 



90 HARVARD LAW SCHOOL. 

in courts or not. Answer. It is thought not. Whereupon re- 
solved and ordered, That pleading attorneys be no longer allowed 
to practise in ye Government, but for ye pending cases. 

This was later modified, and the court in Sept. 1677 made a 
rule that : 

No one be admitted to plead for any other person or as at- 
torney in court without hee first have his admittance of the court 
or have a warrant of attorney for his so doing from his clyent. 

In 1683, the office of Recorder of the City of New York was 
created ; and Tames Graham, a Scotch lawyer, who held the posi- 
tion from 1683 to 1701, as well as that of Attorney General of the 
Province, appears to have been the only trained lawyer in the 
Province at that time. 

From an early date the power of appointment of attorneys 
was exercised by the Governor, and the first license to an at- 
torney bears date of 1709. W. Smith Jr., in his contemporary his- 
tory, laments that the Governors at times licensed all applicants, 
''however indifferently soever recommended", though sometimes 
they took advice of the Chief Justices. 

The only lawyers of distinction in the early i8th Century were 
James Alexander(i), William Smith (2), John Tuder, David 
Jamieson, Francis Harrison, James Emott, Joseph Murray, John 
Chambers, Abraham Lodge, William Nichol(3), and Daniel 
Horsmanden (4) . 

The history of the early Bar, however, is notable for the trial 
of three famous cases. The first was that of Col. Nicholas Bay- 
ard in 1702 indicted for high treason, in which William Nichol 
and James Emott appeared as his counsel. (24 Howell State 
Trials}. This trial as reported gives evidence of great learning 
and research. 

The second was the famous Zenger or Liberty case. In 1733, 
John Peter Zenger had started, in New York City, the Weekly 

(1) Born about 1690, came to New York in 1715, studied law after his 
arrival, attorney general 1721-23, and "though no speaker, was at the head 
of his profession; for sagacity and business penetration and in application 
to business no man could surpass him." 

(2) Born in 1697, a Yale graduate of 1719, "of first reputation as a 
speaker", Justice of the Superior Court of New York in 1763. 

(3) Born in 1657, came to New York in 1688, attorney for the prosecu- 
tion of Jacob Leisler in 1691, and for the defense of Rev. Francis Makemie 
in 1707. 

(4) Born in 1691, Chief Justice in 1763-1776. 



NEW YORK LAWYERS. 91 

Journal. The comments published on the Royal Governor Cosby 
had caused the paper to be pronounced as "seditious", and in 1735, 
Zenger was arrested for libel. James Alexander and William 
Smith at once offered their services as his counsel. They 
began his defence by a hot attack on the commissions of the 
judges, as unconstitutional, because appointed "during pleas- 
ure". For this they were summarily debarred, the Chief Justice 
saying, "The matter has come to the point that we must leave the 
bench or you the bar." Their names were not restored to the 
rolls until two years later. In this plight, Zenger engaged the 
services of Andrew Hamilton of Philadelphia, then the greatest 
lawyer in the Colonies, and the only one who had a continental 
reputation. Hamilton, although eighty years old, undertook the 
case with ardor. Of him, William Smith Jr. wrote in 1757: "He 
had art, eloquence, vivacity, and humour and was ambitious of 
fame, negligent of nothing to ensure success, and possessed a con- 
fidence which no terrors could awe". He at once set up the de- 
fence of truth and powerfully urged the rights of the jury to 
decide all the facts. But at this time the law of England was, as 
Lord Mansfield a few years later proclaimed it, "the greater 
truth, the greater libel", and the jury were only to decide on the 
fact in publication. As Fiske says, "In the history of freedom of 
the press, Hamilton's name is beside the great names of Erskine 
and Fox. It should in fact surmount theirs, for his argument 
preceded theirs." Gouverneur Morris termed Hamilton "the Day 
Star of the American Revolution". 

"The question before this court and you gentlemen of the jury", 
argued Hamilton, "may in its consequences affect every free- 
man that lives under a British Government on the Main of Amer- 
ica. It is the best cause, it is the cause of liberty the liberty 
both of exposing and opposing arbitrary power by speaking and 
writing truth." . . . "What a strange doctrine it is, to press 
everything for law which is in England", he boldly urged. The 
jury at once acquitted Zenger. The pamphlet report of this case 
published in 1735 and republished several times is one of the 
earliest law books in the American Colonies. ( I ) 

The third famous case was that of persons concerned in the al- 
leged negro plot in 1741, the account of which was printed in 
1744, by Daniel Horsmanden, City Recorder. He states that in 



(i) See infra, Chapter VI. 



92 HARVARD LAW SCHOOL. 

the terror over the supposed conspiracy the whole Bar of the city, 
consisting of seven members only, besides the Attorney General 
Bradley, Messrs. Murray, Alexander, Smith, Chambers, Nichols, 
Lodge, and Jameson offered their services to the prosecution "as 
a matter affecting not only the city but the whole province." 

Though small in numbers, a regular Bar Association was in 
existence as early as 1748; and was active in opposing the claim 
of the Royal Governors to appoint judges during their pleasure. 

In 1763, it opposed Gov. Colden's attempt to extend the royal 
prerogative by imposing his authority on the courts in an im- 
portant matter of practice ; and two years later it largely organ- 
ized the determined and successful resistance to the Stamp Act; 
(i) and in the same year, a Committee of the Bar sent in a peti- 
tion to Parliament against internal taxation and the extension of 
the admiralty jurisdiction. In 1/65, Governor Colden, writing to 
the Earl of Halifax of the "dangerous influence which the pro- 
fession of the law had obtained in this province more than in 
any other", expressed a wish that "the people were freed from the 
domination of lawyers". Shortly after this, however, the Bar 
Association went out of existence. 

During the middle of the i8th Century, as Chancellor Kent, in 
his address before the Law Association of the City of New York, 
in 1836, said, "The New York bar contained a constellation of 
learned and accomplished men". Chief of these were William 
Livingston, who was born in 1723, a Yale graduate of 1741, 
studied law with James Alexander, in 1745, later with William 
Smith, and in 1752, collected and published the first digest of 
Colony laws ; and William Smith, Jr., from whose personal recol- 
lections most of New York's early history is now known, born in 
1728, a Yale graduate of 1745. Among others were White- 
head Hicks (2), John Tabor Kempe, the last Royal Attorney Gen- 
eral ; Benjamin Kissam; Peter Van Schaack, Recorder of New 
York and Editor of the Revision of the Statutes in 1774(3) ; John 
Morin Scott (4) ; Samuel Jones, Recorder, and Benjamin Nicoll. 

The number of lawyers even at the beginning of the Revolution 



(1) Sir William Johnson wrote to England from New York that the 
lawyers' opposition to the Stamp Act was for fear that "business must 
decrease from the duties on Law Proceedings." 

(2) Born in 1728, Judge of Supreme Court 1776-80. 

(3) Born in 1747, a Columbia graduate of 1768, studied with W. Smith, 

Jr. 

(4) Born in 1730, a Yale graduate of 1746. 



NEW YORK LAWYERS. 93 

was still comparatively small, for in the sixty-eight years between 
1709 and 1776 only 136 had been licensed as attorneys by the 
Governor. ( i ) 

Valentine, in his history of the City of New York, gives a list 
of only 41 lawyers practicing in the city between 1697 and 
1769. (2) 



(1) It is interesting to note that the last license in the Book of Com- 
missions, signed by the Royal Governor Tryon, is under date of March 11, 
1776, and that on the very next page the "People of the State of New York, 
by the Grace of God free and independent", make their first appointment 
of a Secretary of State. See In the matter of Cooper, 22 N. Y. 67. 

(2) History of the City of New York, by David T. Valentine, 1853. 
Clerk of Common Council. 

Names of Attorneys practicing in the City of New York between the 
year 1695 and the Revolutionary War. 

1697 David Jamison, Gent. 

1698 James Emott, Gent. Atty at Law 

1701 Thomas Weaver Esq. 

1702 John Bridges 
Robert Milwood 

1708 May Bickley 

Jacob Regnier 

Roger Mompesson 
1718 Tobias Boel 
1728 Joseph Murray 

John Chambers 
1730 Abraham Lodge 

Richard Nicholls 

James Alexander 

William Smith 
1740 Daniel Horsmanden 
1743 Lancaster Graen 

1745 Elisha Parker 
John Burnet 
Samuel Clowes 

1746 William Searle 

1747 John McEvers Jr. 
John Van Cortlandt 

1748 Bartholomew Crannell 
William Livingston 

1749 John Alsop 

1751 Augustus Van Cortlandt 

Lambert Moore 
1763 Whitehead Hicks 

1768 Benjamin Kissam 
Benjamin Helme 
Rudolphus Ritzema 
John McKesson 

1769 Richard Harrison 
Philip Livingston Jr. 
Thomas Jones 
Philip J. Livingston 
John William Smith 
John D. Crimshire 
David Mathews 
Samuel Jones. 



94 HARVARD LAW SCHOOL. 

Professional practice at this time, outside of political matters, 
was scanty, and as Sedgwick said, in his Life of Livingston, 
"the great number of cases were collection of debts owed by 
English merchants and suits in ejectment which does much to 
diminish any regret which may be felt for the want of colonial 
reports' 5 . 

The State Constitution of 1777 provided that all attorneys, 
solicitors and counsellors should be appointed by license from 
the courts. 

After the Revolution, the profession was called into most ac- 
tive business. The courts were crowded with cases, largely of 
marine, insurance, and mercantile law. Many of the Tory law- 
yers had left the Province. In 1779, the Legislature suspended all 
licenses to plead or practise law granted before April 21, 1777, 
subject to restoration provided that the lawyer should give satis- 
factory proof before a sheriff's jury that he had been true to the 
American cause ; and as many of those lawyers who had not be- 
come refugees were unable to take this oath, a great oppor- 
tunity was thus opened for the younger men at the Bar. ( i ) 

Even in 1/85, the roll of the New York City Bar numbered 
only 40. A brief sketch of six of the more prominent will give 
some idea of their legal education. It is to be noted that, with 
very few exceptions, all the noted lawyers were college graduates. 

John Jay, born in 1745, six years Hamilton's senior, and 
eleven years older than Burr, graduated from Columbia (then 
King's college) in 1764. and studied law under Benjamin Kissam. 
Admitted to the Bar in 1768, he became, in 1776, Chief Justice of 
New York; and in 1789 he was appointed the first Chief Justice 
of the United States Supreme Court. 

Gouverneur Morris, born in 1752, graduated from Columbia 
College in 1768, studied law with William Smith, Jr., and was 
admitted to practice in 1771. 

Alexander Hamilton, born in 1751, in the West Indies, came 
to America in 1772, graduated at Columbia College and in 
July, 1782, was admitted as attorney after four months' study. 
Even before admission, he had composed a manual on the . 
practice of law so valuable that lawyers copied it in manuscript. 



(i) A graphic summing up of a few of the leaders at the close of the 
iSth Century is given in the Discourse on the Life, Character and Public 
Services of Ambrose Spencer, by Daniel D. Barnard, (1849). 



NEW YORK LAWYERS. 95 

Only two years after his admission he established his fame as a 
lawyer, in the case of Rutgers v. Waddington, tried in 1784. 

Aaron Burr was born in 1756, graduated at Princeton in 1772, 
studied law in the office of Thomas Smith for six months, confin- 
ing himself entirely to an acquaintance with forms, and trusting 
to gain a knowledge of principles later. Although by rule of 
court a three years' course of study was required, the court dis- 
pensed with the rule in his case, owing to his military service, and 
admitted him to practice in 1782, the same year with Hamilton. 

Three years later James Kent was admitted to practice. Born 
in 1763, he graduated at Yale in 1781, "and stood as well as 
any in my class", he wrote, "but the test of scholarship at that 
day was very contemptible. I was only a very inferior classical 
scholar". He studied law in the office of Egbert Benson, Attor- 
ney General of New York, and from 1786 to 1793, practised at 
Poughkeepsie. In 1797 be became Recorder of the City of New 
York, in 1798 Judge of the Supreme Court, in 1804 Chief Justice, 
in 1814 Chancellor. 

In the same year that Kent graduated from Yale, Edward 
Livingston (born in 1764) graduated from Princeton. He 
studied in the office of John Lansing, and he, Kent, Burr and 
Hamilton were all in the habit of meeting at Albany for discus- 
sion of legal terms and methods of study. Admitted to the Bar in 
1785, in 1803, Livingston went to Louisiana where he became in 
1805 the author of the first American Code of Procedure. 

Besides these there were in practice, or soon coming to practice, 
James Duane(i), George Clinton(2), Egbert Benson (3), Robert 
R. Livingston (4), Richard Morris Smith, Richard Varick(5), 
John Lansing(6), Morgan Lewis (7), Robert Troup(8), Edward 



(1) Born in 1733, first Mayor of New York, 1784-1/89 U. S. District 
Judge. 

(2) Born in 1739, studied in office of W. Smith. 

(3) Born in 1746, graduate of Columbia 1765, Atty. Gen. 1777-89, Judge 
of Supreme Court 1794. 

(4) Born in 1746, graduate of Columbia 1/65, student with W. Smith, 
and W. Livingston, Chancellor 1789-1801. 

(5) Born in 1750, Recorder 1783, Reviser of Laws of New York with S. 
Jones 1789. 

(6) Born in 1754, student in office of James Duane, Judge of the Su- 
preme Court 1776-1790, Chief Justice 1790-1798, and Chancellor in 1801. 

(7) Born in 1754, Princeton graduate 1773, student in office of John 
Jay, Chief Justice in 1801. 

(8) Born in 1757, Columbia graduate 1774, studied law with John Jay 
and in New Jersey under William Patterson, U. S. District Judge in 1789. 



96 HARVARD LAW SCHOOL. 

Livingston, Richard Harrison, John Lawrence, DeWitt Clinton 
(9), Daniel O. Tompkins ( 10) , Josiah Ogden Hoffman, William 
Brockholst Livingston ( i ), William W. Van Ness(2), Abra- 
ham Van Vechten(3), and Robert Yates(4). 

No better idea of the New York Bar at the close of the i8th 
century can be obtained than from the description by Ex-Chan- 
cellor Kent of his personal impressions. 

After the peace of 1783, a few gentlemen of the colonial 
school resumed their ancient practice; but the Bar was 
chiefly supplied by a number of ambitious and high spirited 
young men, who had returned from the field of arms with 
honorable distinction, and by extraordinary application they soon 
became qualified to commence their career at the Bar with dis- 
tinguished reputation .... Colonel Burr was acute, quick, 
terse, polished, sententious, and sometimes sarcastic in his for- 
ensic discussions. He seemed to disdain illustration and expan- 
sion, and confined himself with stringency to the point in debate. 
But among all his brethren Colonel Hamilton was indus- 
putably preeminent. This was universally conceded. He 
rose at once to the loftiest heights of professional eminence by 
his profound penetration, his power of analysis, the comprehen- 
sive grasp and strength of his understanding, and the firmness, 
frankness and superiority of his character. . . . 

At that day everything in law seemed to be new. Our judges 
were not remarkable for law learning. We had no precedents of 

our own to< guide us Nothing was settled in our 

courts. Every point of practice had to be investigated, and its 
application to our courts and institutions questioned and tested. 
. There were no decisions of any of the courts pub- 
lished. There were none that contained any investigation. In 
the city of New York, Hamilton, Harrison, Burr, Cozine and 
perhaps John Lawrence and old Samuel Jones (then deemed and 
known as the oracle of the law) began to introduce the knowl- 
edge and cultivation of the law which was confined of course to 
Coke, Littleton, and the reporters down to Burrow. 

Hamilton brought a writ of right in a Waddell case in this 
city which made quite a sensation and created much puzzle in the 

(9) Born in 1769, Columbia graduate 1786, studied in office of Samuel 
Jones. 

(10) Born in 1774, Columbia graduate 1795, Judge of Supreme Court 
in 1805. 

(1) Born in 1757, Princeton graduate 1774, Judge of Supreme Court 
1802, Judge of U. S. Supreme Court 1807. 

(2) Born in 1776, Judge of Supreme Court 1807-22. 

(3) Born in 1762, studied with John Lansing, termed "the father of 
the New York Bar," being the first lawyer admitted under the State Con- 
stitution, Attorney General 1810, 1813-15. 

(4) Born in 1738, studied with W. Livingston, Judge of the Supreme 
Court 1776, Chief Justice 1790-98. 



NEW YORK LAWYERS. 97 

court. The judges of the Supreme Court (Norris, Yates and 
Lansing) were very illiterate as lawyers. . . . The country 
circuit courts were chiefly occupied in plain ejectment suits and 
in trying criminals. In short, our jurisprudence was a blank 
when Hamilton and Harrison first began by their forensic discus- 
sions to introduce principles and to pour light and learning upon 
the science of law. 

Mr. Hamilton returned to private life and to the practice of 
the law in New York in the spring of 1795. 

Between the years 1795 and 1798 he took his station as the 
leading counsel at the Bar. He was employed in every important 
and especially in every commercial case. He was a very great 
favorite with the merchants of New York, and he most justly 
deserved to be, for he had uniformly shown himself to be one 
of the most enlightened, intrepid, and persevering friends to the 
commercial prosperity of this country. Insurance questions, both 
upon the law and the fact, constituted a large portion of the 
litigated business in the courts, and much of the intense study 
and discussion at the Bar. The business of insurance was car- 
ried on principally by private underwriters, and as the law had 
not been defined and settled in this country by a course of 
judicial decisions, and was open to numerous perplexed ques- 
tions arising out of our neutral trade, and was left, under a 
complicated mixture of law and fact, very much at large to a 
jury, the litigation of that kind was immense. Mr. Hamilton had 
an overwhelming share of it, and though the New York Bar could 
at that time boast of the clear intellect, the candor, the simplicity, 
and black-letter learning of the elder Jones, the profound and 
richly varied learning of Harrison, the classical taste and elegant 
accomplishments of Brockholst Livingston, the solid and ac- 
curate, but unpretending common law learning of Troup, the 
chivalrous feelings and dignified address of Pendleton, yet the 
mighty mind of Hamilton would at times bear down all opposi- 
tion by its comprehensive grasp and the strength of his reasoning 
powers. 

He taught us all how to probe deeply into the hidden recesses 
of the science, or to follow up principles to their far distant 
sources. He was not content with the modern reports, abridg- 
ments, or translations. He ransacked cases and precedents to 
their very foundations ; and we learned from him to carry our 
inquiries into the commercial codes of the nations of the Euro- 
pean continent, and in a special manner to illustrate the law of 
insurance by the severe judgment of Emerigon and the luminous 
commentaries of Valin. If I were to select any two cases 
in which his varied powers were most strikingly displayed, 
it would be the case of Le Guen r. Gouverneur and Kemble, 
argued before the Court of Errors in the winter of 1800, and the 
case of the Croswell v. The People, argued before the Supreme 



98 HARVARD LAW SCHOOL. 

'Court in February term, 1804, and involving a libel on Thomas 
Jefferson. 

NOTE. 

For authorities in general see : 

Allegiance and Laws of Colonial New York, Harv. Law Rev. 
Vol. XV. 

History of New York, by William Dunlap, (1840). 

History of New York, by William Smith, (Vol. I, pub. in Lon- 
don in 1757; Vol. II in N. Y. in 1826). 

History of New York, by Ellis H. Roberts (1887). 

Lives and Times of the Chief Justices, by Henry Flanders 
(1881). 

Dutch and Quaker Colonies in America, by John Fiske (1899). 

American Law Rzvieiv, Vol. V, p. 445. 

Rufus King, Life and Correspondence, by Charles R. King, 

(1894). 

Address by George Shea in New York Bar Association, Proc. 
Vol. II. 

New York Bar Assn. Proc. Vol. XII, p. 127. 

Address of James Kent before Law Association of City of 
New York, Oct. 21, 1836. 

Memoir of Alexander Hamilton, a letter by James Kent (1832). 

Life of James Kent, by William Kent, (1898). 

Memoirs of the Life of William Livingston, by Theodore Sedg- 
wick, Jr., (1833). 

Aaron Burr, by Samuel L. Knapp (1835). 

Aaron Burr, Life and Times, by James Parton (1882). 

Diary and Letters of Gouverneur Morris, by Anne Carey Mor- 
ris, (1888). 

Gouverneur Morris, by Jared Sparks (1832). 

Alexander Hamilton, by John T. Morse, Jr. (1876). 

Lives of William Smith, Jr., Lindley Murray, and Beverley 
Robinson, in Loyalists of American Revolution, by Lorenzo Sa- 
bine, (1864). 

American Criminal Trials, by Peleg W. Chandler, (1847). 

Life of Edward Livingston, by Charles H. Hunt, (1864). 

Lives of the Governors of the State of New York, by John S. 
Jenkins, (1851). 

PENNSYLVANIA. 

The first courts in Pennsylvania were constituted under the 
Duke of York's Government in 1673, County Courts, the records 
of at least one of which (Upland or Chester County) from No- 
vember 1676, to June 1 68 1, are still extant. The judges were 
for many years exclusively Swedes and of no legal training. No 



PENNSYLVANIA LAWYERS. 99 

attorney was allowed to practice for pay before them. They 
exercised legislative as well as judicial powers, hearing suits for 
debts, approving indentures of apprentices, imposing taxes and 
fines, punishing misdemeanors, granting lands, adjusting title 
disputes, and directing uses of the revenue. 

In 1682-3, the Governor and Council exercised judicial power. 

In 1684, under Penn's charter a Supreme Court was con- 
stituted composed of five judges, of which Nicholas More, a 
physician, was Chief Justice. Of the first six Chief Justices only 
one was a trained lawyer John Guest, an English barrister, 
who became Chief Justice in 1706. In the same year (1706) 
Roger Mompesson, who had been an educated lawyer, the Re- 
corder of Southampton and twice a member of Parliament in 
England, was appointed Chief Justice, at the instance of William 
Penn, who wrote to James Logan, advising "the people to lay 
hold of such an opportunity as no government in America ever 
had of procuring the services of an English lawyer." 

After him came three Chief Justices of little legal note, then 
came David Lloyd, a noted English lawyer, who was Chief Justice, 
1719-1731. James Logan, a man of little legal training followed, 
1731-1739; then Jeremiah Langhorne, a preacher, 1739-1743. 
John Kinsey (1743-50) (i), William Allen (1751-74), and Ben- 
jamin Chew (1774-79), were all trained lawyers (the last two 
being English barristers). 

The associate judges were invariably laymen, usually merch- 
ants, and, as William Rawle said in 1826, it was practically true 
that "before the Revolution the Bench was rarely graced by 
professional characters." 

No records of the Supreme Court are extant; and David Lloyd 
says that in his time (the end of the I7th Century) they were 
written "on a quire of paper". A few of the decided cases, how- 
ever, are reported in Dallas' Reports; and in 1892 a volume of 
Colonial cases, the earliest dating back to 1683 seventy years 
before the earliest case reported in Dallas was published by 
Judge Pennypacker. 

Although the court decisions were based largely on rough 

(i) The records of the Provincial Council, April 5, 1743, state: "His 
Honour told the council that as the place of chief justice was vacant by the 
death of Mr. Langhorne and it would be of very great advantage to the 
province that one of the profession of the law preside in the Supreme 
Court, he had made an offer of it to Mr. Kinsey, a gentleman well known 
to them." 



ioo HARVARD LAW SCHOOL. 

and businesslike notions of equity, and with little regard to pre- 
cedents, the Colony had a full and well settled code of law from 
the beginning consisting of the "Frame of Law" agreed upon 
in England in 1682, the Great Law or Body of Law enacted at 
Chester in the same year, the Act of Settlement passed in Phila- 
delphia in 1683, and eighty chapters of statutes enacted the same 
year, the Frame of Government in 1683 an ^ 1696, and the laws 
of 1701. These codes embodied a complete system and rendered 
more elaborate legislation unnecessary for a long time. 

Upon the settlement of the Province by Penn and his Quakers, 
there was an instinctive antipathy to lawyers as a class, as being 
men of strife and of barratrous tendencies, and therefore op- 
posed to the fundamental religious views of the new settlers. 

To avoid the necessity of courts and lawsuits, provision was 
made in 1683, for the appointment of three "common peace- 
makers" in every precinct, their arbitration to be valid and final 
as a judgment. 

In the "Laws agreed upon" in England May 5, 1682, it was 
provided : 

that in all courts all persons of all persuasions may freely 
appear in their own way and according to their own manner 
and there personally plead their own case themselves and if 
unable, by their friends ; that all pleadings, processes, and records 
in court shall be short and in English and in an ordinary and 
plain character that they may be understood and justice speedily 
administered. 

In 1686 and in 1690, the Provincial Council attempted, but 
without success, to pass a bill preventing any person pleading 
in any civil causes of another, before he 

be solemnlye attested in open court that he neither directly 
nor indirectly hath in any wise taken or received or will take or 
receive to his use or benefit any reward whatsoever for his soe 
pleading. 

In 1698, Gabriel Thomas wrote, (i) "Of Lawyers and Physi- 
cians I shall say nothing, because this country is very peaceable 
and healthy : Long may it so continue and never have occasion 
for the tongue of the one nor the pen of the other both equally 
destructive of men's estates and lives." 



(l) An Historical and Geographical Account of the Province and 
Country of Pennsylvania and of West Jersey in America, by Gabriel 
Thomas (London 1698). 



PENNSYLVANIA LAWYERS. 101 

At the end of the I7th Century, while there were a few lay 
lawyers, such as Abraham Man, John White (Attorney General 
in 1683), Charles Pickering, Samuel Hersnet (Attorney General 
in 1685), Patrick Robinson, and Samuel Jennings, there were 
only three or four trained English lawyers in the Province. 

Of these, by far the most famous, possibly the greatest lawyer 
in all the American Colonies, was Andrew Hamilton, a barrister 
and bencher of Grays Inn. He came to Philadelphia in 1682, and 
was successively Recorder of Philadelphia, Vice Admiralty Judge, 
Speaker of the Assembly, and Attorney General. David Lloyd, 
a noted Welsh jurist, was sent out from England as Attorney 
General in 1686 and held many offices of trust in the Province, 
being looked upon as the great advocate of the people's rights. 
He became Chief Justice in 1718, and was described by James 
Logan, his successor as Chief Justice in 1731, in a letter to Penn 
as "a man very stiff in all his undertakings, of a sound judgment 
and a good lawyer, but extremely pertinacious and somewhat re- 
vengeful." 

The paucity of lawyers was well illustrated by Penn in 1700, in 
replying to the charges made by Robert Quary, Judge of Admiral- 
ty, of failing to prosecute William Smith Jr. for a heinous crime. 
In his answer Penn stated that the defendant had subsequently 

married ye only material witness against him, which in the 
opinion of ye only two lawyers of the place (and one of them ye 
King's advocate of ye Admiralty and ye attorney general of the 
county) has rendered her incompetent to testify against him. 

McCall states that, in 1706, the whole Bar of Philadelphia 
consisted of G. Lowther, David Lloyd, Robert Assheton and 
Thomas Clark. At all events, it was so small that there are 
records of cases in which the plaintiff complained that the de- 
fendant had cornered all the lawyers in the Province. Thus in 
1708, there was a petition to the Council from one complaining 
that he had been sued in trover by Joseph Growden and that the 
latter had retained all the lawyers in the county, wherefore he 
prayed the Council to assign him counsel. So too, in 1709, one 
Francis D. Pastorius complained that one Spogell had got a 
writ of ejectment and had feed and retained the four known law- 
yers of the Province "in order to deprive the Petitioner of all 
advice in law," and the petitioner being too poor to "fetch lawyers 



102 HARVARD LAW SCHOOL. 

from New York or remote places, prays that Spogell's proceed- 
ings may be enjoined." 

Shortly before this, Lord Peterborough had written : 

I took a trip once with Penn to his colony of Pennsylvania; the 
laws there are contained in a small volume and are so extremely 
good that there has been no alteration wanted in any one of them 
ever since Sir William made them. They have no lawyers. 

Everyone is to tell his own case, or some friend for him. 

i 

t 

Early in the i8th Century, other English lawyers came into the 
Province, as business increased William Assheton, John Mo- 
land, and Tench Francis. The latter, who succeeded Andrew 
Hamilton as Attorney General in 1744, is stated to have been the 
"first of the lawyers of that province to master the technical dif- 
ficulties of the profession." He was the brother of Richard 
Francis, the well known English author of Maxims of Equity, 
and came from Ireland in 1740. Secretary Peters wrote, at this 
time, of the lawyers "all of whom except Francis and Moland 
are persons of no knowledge and I had almost said, no prin- 
ciple." 

The first Statute as to the admission of lawyers was enacted in 
1722, providing that "there may be a competent number of per- 
sons of an honest disposition and learned in the law admitted by 
the justices ... to practice as attorneys." A form of oath 
was also prescribed. 

Although Governor Keith, in 1723, complained of the great 
increase of lawsuits 431 writs being issued in 1715-16 and 847 
in 1721-22; it would seem that the Quaker population was, as a 
rule, a non-litigious one, and this fact partially accounted for the 
lack of lawyers. 

So strong were the Quakers in every branch of life, that even 
the courts were obliged to take notice of their religious forms. 
Thus in 1725, when John Kinsey, a prominent Quaker lawyer 
(later Chief Justice) was compelled by Sir William Keith, the 
Governor, to take off his hat before being allowed to address 
the court, so great consternation was caused in the Prov 
ince, that the Society of Friends appointed a committee to ad- 
dress the Governor, and to demand of him the free exercise of 
the privilege of appearing in courts or otherwise, in their own 
way and according to their religious persuasion. A Rule of 
Court later assured full liberty in this point of conscience. 



PENNSYLVANIA LAWYERS. 103 

Horace Binney, (the leader of the Philadelphia Bar in the early 
igih Century) thus sums up the conditions: 

Of the primitive Bar of the Province of Pennsylvania we 
know nothing, and next to nothing of the men who appeared at 
it from time to time up to the termination of the Colonial Gov- 
ernment. 

The statement of C. J. Tilghman in the Bush Hill case (Lyle 
v. Richards, 9 Serg and Rawle} reveals to us all we know and all 
that probably we can ever know in regard to this subject; for as 
the grandson of Tench Francis who was attorney general in 
1745 and connected by marriage association with the most emi- 
nent families of the Bar, he knew as much of the former Bar as 
any of his contemporaries and they have all long since departed 
without adding anything to what he left. 

From what I have been able to learn, said the C. J., of 
the early history of Pennsylvania, it was a long time before she 
possessed any lawyers of eminence. There were never want- 
ing men of strong minds very well able to conduct the business 
of the courts without much regard to form. 

In the lists given by Martin, in his Bench and Bar of Philadelphia, 
it appears that there were 23 lawyers before 1700 and 51 between 
1700 and 1785, in the Province of Philadelphia. Of the practising 
attorneys between 1683 an ^ 1742, only ten had had any legal 
training. Seventy-six lawyers were admitted to practice in the 
Supreme Court between 1742 and 1776. 

Just before the War of the Revolution, a considerable group of 
distinguished and educated lawyers composed the Bar. Chief 
among them were Benjamin Chew, a Maryland lawyer, born in 
1718, a barrister of the Middle Temple, who succeeded Tench 
Francis as Attorney General in 1755, and became Chief Justice 
in 1774; Thomas McKean, who was born in 1734. admitted to 
practice in 1757, and studied in the Middle Temple in 1758 and 
became Chief Justice in 1777; Edward Shippen, who was born in 
1729, studied in the office of Tench Francis, admitted in 1748, 
studied in the Middle Temple in 1750 and became Chief Justice 
in 1799. Others of note were Joseph Galloway (i), John Dick- 
inson (2), Francis Hopkinson (3), George Read (4), Joseph 



(1) Born in Maryland, in 1731, acquired an immense real property 
practice, was a favorite pleader ; at the Revolution he became a Tory and 
left this country, his estate amounting to 400,000 pounds being con- 
fiscated. 

(2) Born in Maryland, in 1732, studied in the office of William Killen 
(afterwards Chief Justice of Delaware), and in Philadelphia in the office 



104 HARVARD LAW SCHOOL. 

Read(i), and Alexander Wilcocks. The chief characteristic of 
the Philadelphia Bar of this period was the large number who had 
received education in the English Inns of Court. 

After the Revolution, the Bar attained great and distinguished 
development, so that in 1785, it appears from White's Directory 
that there were then 34 Counsellors at law. Of these, the most 
notable were, William Lewis, the "Senior of the Bar," who (says 
Binney) "loomed large like Theophilus Parsons at Boston and 
Luther Martin at Baltimore" (2) ; Edward Tilghman(3) ; Will- 
iam Tilghman(4) ; James Wilson, probably the leader among 
advocates at the Bar (5) ; Jared Ingersoll(6) ; Alexander J. 
Dallas(7; Willaim Rawle(8) ; William Bradford (9) ; Jasper 
Yeates(io); and Richard Peters.(n) 



of John Moland, who was the most conspicuous member of the Bar after 
1741, later he attended the Middle Temple. 

(3) Born in 1737, studied under Chew, and was one of the signers 
of the Declaration of Independence, later Judge of Admiralty, and of the 
United States District Court 1790-91. 

(4) Born in Maryland, in 1734, admitted to the Bar in 1753, like Dick- 
inson a student in the Middle Temple and like him a King's Attorney 
General. "A deep read lawyer, versed in special pleading," later Chief 
Justice of Delaware, a signer of the Declaration of Independence. 

(1) Bora in 1741, a graduate of Princeton and of the Temple, one of 
the most distinguished of the students in Richard Stockton's office in New 
Jersey. 

(2) Born in 1748 and studied law in the offices of Nicholas Wain and 
George Ross, was admitted to the Bar in 1776, and became the great crim- 
inal lawyer of his day. He was the fearless counsel for John Fries in 
the case which led to the impeachment in 1805 of Judge Chase, of the 
United States Supreme Court. 

(3) A grandson of Tench Francis, born in Maryland in 1750, studied 
in the Middle Temple, and was admitted to the Bar in 1774. He was 
the consummate Pennsylvania authority on all points connected with es- 
tates, tenures, uses, .and remainders. 

(4) Born in 1759, studied law with Kemp in New York, admitted 
to practice in 1783, and became Chief Justice of the State in 1806. He 
was a master of Equity Jurisprudence. 

(5) Born in Scotland in 1745, educated at the University of Glasgow, 
St. Andrews, and Edinburgh, came to Philadelphia in 1766, and studied in 
office of John Dickinson. He was one of the signers, one of the most 
important members of the Constitutional Convention and was retained 
in almost every important case. Appointed judge of the U. S. Supreme 
Court in 1789, it was said that his "ability as a judge did not equal his 
eminence off the bench." 

At a Philadelphia dinner a wit gave the following toast. "To the 
memory of three great Philadelphians Benjamin Franklin, of Boston ; 
Albert Gallatin, of Geneva; James Wilson, of Edinburgh!" 

(6) Born in 1752, in Connecticut, graduated at Yale in 1766, and 
educated in the Middle Temple, 1774-1778; admitted to the Bar in 1779. 

(7) Born in Jamaica in 1759, studied in the Temple, came to the 
United States in 1787, and was admitted to the Bar in Philadelphia in 
1785. He published the first volume of Dallas' Reports, in 1790. 

(8) Born in 1759, studied law with Kemp in New York, and in the 



PENNSYLVANIA LAWYERS. 105 

It is interesting to note, that the first American novelist, Charles 
Brockden Brown, was a student of law in Philadelphia in 1790, 
but regarded the law as a "tissue of shreds and remnants of a 
barbarous antiquity, patched by the stupidity of modern workmen 
into new deformity." 

Of the lawyers who made the beginning of the igth Century 
brilliant, the leaders were, Horace Binney(i) ; Charles Jared 
Ingersoll(2) ; Charles Chauncey(3) ; Jasper Moylan; John 
Sergeant ( 4) ; Richard Peters (5 ); Peter S. Du Ponceau ( 6) ; 
Thomas Sergeant (7) ; and Joseph Hopkinson(S). 

NOTE. 

See for authorities in general : 

Dutch and Quaker Colonies, by John Fiske (1899). 

A Glance at our Colonial Bar, Green Bag. Vol. XI. 

Pennsylvania Colonial and Federal, by Howard Mcjenkins 

(I903)-" 
English Common Law in the Early American Colonies, by 

Paul S. Reinsch. 

Bench and Bar of Old Philadelphia, by John H. Harris 
(1883). 

Discourse Before the Law Academy, Sept. 15, 1838, by P. Mc- 
Call (1838). 

An Essay on Equity in Pennsylvania, by Anthony Laussat 
(1825) in Penn. Bar Assn. Rep., Vol. I (1895). 



Middle Temple in 1781, and became United States District Attorney in 
1791, being prosecutor in the whiskey Insurrection and in the famous John 
Fries case. "Between 1793 and 1813 his practice was as large as any 
lawyer at the bar." 

(9) Born in 1755, a Princeton graduate in 1/72, was judge of the 
Pennsylvania Supreme Court in 1791 and the second attorney general of 
the United States, succeeding Edmund Randolph, of Virginia, in 1794. 

( 10) Born in 1745, graduate in 1761 of the College of Philadelphia, 
a student in the Temple, Judge of the Supreme Court in 1791. 

(n) Born in 1744, graduate of College of Philadelphia in 1761, United 
States District Judge 1792. 

(1) Born in 1780, a graduate of Harvard in 1797, studied in office of 
Jared Ingersoll, admitted to the Bar in 1800. 

(2) Born in 1782, student of Princeton 1796-1799, admitted to the Bar 
in 1802. 

(3) Born in 1777, Yale graduate of 1792, studied with Jared Ingersoll, 
admitted in 1799. 

(4) Born in 1779, Princeton graduate of 1795, admitted in 1799. 

(5) Born in 1780, admitted in 1800, Reporter of United States Su- 
preme Court. 

(6) Born in 1760. 

(7) Born in 1782, Princeton graduate of 1798, studied with Jared 
Ingersoll, Judge of Supreme Court 1834-46. 

(8) Born in 1770, Univ. of Penn. graduate of 1786, admitted to prac- 
tice 1791, United States District Attorney in 1828. 



io6 HARVARD LAW SCHOOL. 

Pennsylvania Jurisprudence, by John W. Simonton, Penn. 
Bar Assn. Vol. I. 

Bar of Pennsylvania and its Influence, by J. Levering Jones, 
Penn. Bar Assn. Vol. X. 

Courts of Pennsylvania in the \jth Century, by Lawrence 
Lewis, Jr. (1881) Penn. Bar Assn. Vol. I. 

The Common Law of Pennsylvania, by George Sharswood 
(1855) Penn. Bar Assn. Vol. I. 

The District Court, by James T. Mitchell in Penn. Bar Assn. 
Vol. V, (1885). 

Joseph Galloway, by Ernest H. Baldwin (1902). 

Life of Joseph Galloway and Edward Shippen in Loyalists of 
the American Revolution, by Lorenzo Sabine. 

Remarks to Bar on Death of Charles Chauncey and John 
Sergeant, by Horace Binney (1853). 

The McKean Family, by Roberdeau Buchanan (1890). 

William Tilghman, by Horace Binney (1827). 

Life of Horace Binney, by Charles C. Binney (1903). 

Horace Binney, Green Bag, Vol. V. 

The Supreme Court of Pennsylvania, by Judge F. Carroll 
Brewster in The Supreme Court of the States and Provinces, Vol. 
I, Series 3, (1895). 

Life of Thomas McKean, by Judge James T. Mitchell in The 
Supreme Court of the States and Provinces, Vol. I, Series 3, 

(1895)- 
Life and Times of John Dickinson, by Charles J. Stille (1891). 

Memoir of William Rawle, by T. J. Wharton, Penn. Hist. 
Assn. Proc. Vol. IV, (1837). 

Memoir of William Bradford, by Horace Binney Wallace 
(1856). 

The Republican Court, or American Society in the Days of 
Washington, by Rufus W. Griswold (1855). 

Life of George Read, by William T. Read (1870). 

Life of Charles Jared Ingersoll, by William M. Meigs (1897). 

Scharf and Westcott's History of Philadelphia- (1884). 

The Supreme Court of Pennsylvania, by Owen Wister, Green 
Bag. Vol. III. 

Life and Writings of Alexander James Dallas, by George M. 
Dallas (1871). 

Pennsylvania Colonial Cases, by Samuel W. Pennypacker 
(1892). 

The Law Association of Philadelphia, 1802-1902, (1906). 

The Courts of Pennsylvania Prior to the Revolution, Univ. of 
Penn. Law Rev. Vol. LVI, (1908). 

Judicial Memoranda in the History of Pennsylvania in The 
Journal of Jurisprudence } Vol. I (1821). 

NEW JERSEY. 

In the Judicial and Civil History of New Jersey, by John 
Whitehead (1897), no names of any lawyers practising in the 



NEW JERSEY LAWYERS. 107 

I7th Century are given ; and it is said, "the courts of New Jersey 
were not established upon any settled plan nor upon any perfected 
system, until about the beginning of the i8th Century." From 
the time of the conquest of the Colony of East Jersey from the 
Dutch, in 1664, the judicial power lay in the Governor, and on 
appeal from the small local courts to the Governor and Council. 

The Supreme Court was established in 1/04, (two years after 
the consolidation of East and West New Jersey) ; and presided 
over by an English lawyer, Roger Mompesson, who arrived in 
Philadelphia in 1703 and who was also Chief Justice of New 
York. 

Out of eight of his successors down to the Revolution, three 
only, Thomas Gordon, in 1709, David Jamison, in 1710, and 
Robert Hunter Morris, 1738-44, were educated lawyers. Of 
the latter it was said, that "he reduced the pleadings to precision 
and method and possessed the great perfection of his office, 
knowledge and integrity, in more perfection than had often been 
known before in the colonies." Few of the other judges before 
the Revolution had legal training. 

In 1682, the Legislature of East New Jersey enacted that "in 
all courts, all persons of all persuasions may freely appear in 
their own way and according to their own manner, and there 
personally plead their own cause, and if unable, by their friends 
or attorneys." 

Of the early lawyers little is known ; and it was not until the 
founding of Princeton in 1746 that a trained Bar began. 

In 1740, an act was passed regulating in detail the practice of 
law and establishing fees. In 1769-70, a storm of attacks cen- 
tered around lawyers, arising from the cost, abuses, and multi- 
plicity of suits. Charges were preferred in the Assembly against 
even the leaders of the Bar ; and mobs attempted to prevent the 
lawyers from entering the court houses. With the passing, how- 
ever, of the financial crisis then prevailing, these attacks grad- 
ually died out. (i) 

It is a well known fact that in its administration of justice, 
New Jersey has always, even to the present day, followed more 
closely the old English precedents than any other American State. 

(i) The Provincial Court of New Jersey with Sketches of the Bench and 
Bar, by Richard F. Field (1849), N. J. Hist. Soc. Coll., Vol. III. 

Constitution and Government of New Jersey with Reminiscences of the 
Bench and Bar, by L. Q. C. Elmer (1872), N. J. Hist. Soc. Coll., Vol. VII. 



io8 HARVARD LAW SCHOOL. 

As an example, in 1755, the Supreme Court instituted the order of 
Sergeants, in imitation of the ancient English degree of Sergeant 
at Law; and in 1763, it was ordered that "no person for the 
future shall practise as a sergeant in this court but those that are 
recommended by the judges to the governor for the time being 
and duly called up by writ and sworn agreeably to the practice in 
England."(i) Later the number of Sergeants was fixed at 
twelve; and they conducted examinations for admission to the 
Bar. They were not abolished until as late as 1839. 

In 1767, a distinction was made (as in Massachusetts) between 
attorney and barrister (or counsellor as it was termed in New 
Jersey) ; and it was provided that no man should practice 
as counsellor until he had been an attorney for three years and 
duly examined in court for the advanced status. 

By the time of the Revolution, an organized Bar had grown up ; 
and there is a record of the call of a meeting of the State Bar, 
in September, 1765, to discuss the Stamp Act, at which meeting 
it was unanimously resolved to use no stamps for any purpose. 

Of lawyers of prominence, prior to the Revolution, two stand 
forth pre-eminent. David Ogden, born in 1707, a Yale graduate 
of 1728, judge of the Supreme Court in 1772, of whom it was said 
that as a lawyer, he had no equal in New York or New Jersey; 
and his pupil, Richard Stockton, born in 1730, a Princeton grad- 
uate of 1748, who was admitted to the Bar in 1754, as counsellor in 
1758, and as Sergeant at law in 1763, in 1774 made Judge of the 
Supreme Court. His practice was very large both in New Jer- 
sey, and in Pennsylvania, where he was the frequent opponent 
at the Bar of Dickinson, Shippen, and Chew, His reputation was 
such that a legal education in New Jersey was hardly considered 
complete unless it included a course of study in his office, and he 
had frequent applications besides from students of other States. 
Among his pupils were Elias Boudinot, William Paterson (later 
Judge of the United States Supreme Court), Joseph Read, Jona- 
than D. Sergeant, and William Davie and John Rutherford of 
Virginia. (2). 



(1) History of the Supreme Court of New Jersey, by Francis B Lee, 
Vol. I (1896).' 

(2) Sanderson's Lives of the Signers. 

Many of the prominent lawyers became Tories Isaac Allen, William 
Taylor, Henry Waddell, Cortlandt Skinner the last Royal Attorney Gen- 
eral, Frederick Smyth the last Royal Chief Justice, William Franklin. 

See Lives in Loyalists of the American Revolution, by Lorenzo Sabine. 



SOUTH CAROLINA LAWYERS. 109 

SOUTH CAROLINA. 

The fundamental constitution of South Carolina was adopted 
at the time of its settlement, in 1670-71, under its charter of 1663. 

As early as 1712, by a special act, the Assembly adopted the 
English Common Law as a rude of ad judicature, and also 126 Eng- 
lish statutes which had been selected by Chief Justice Trott as ap- 
plicable to the condition of the Colony. Before that, there had 
been doubt as to how far the English Law was applicable; and 
in 1692, the Assembly, in an address to Governor Ludwell, had 
complained because the court had "assumed to put in force such 
English laws as they deemed adapted to the province ; but the 
Assembly conceived that either such laws were valid of their own 
force or could only be made so by an act of the Assembly." 

No law passed prior to 1682 is to be found on record. The 
first authority for printing the laws was given in 1712. There 
is no regular record of any judicial proceedings, prior to 1703, 
nor any record entered in any bound books, prior to 1710. Regu- 
lar court records are extant from 1716. 

The first compilation of the law was made by Chief Justice 
Trott in 1734, the second by Judge Grimke in 1789. 

For many years the Chief Justice of the Colony constituted the 
whole court; and there were no assistant judges prior to 1736. 

For nearly 100 years Charleston was the sole source and centre 
of all judicial proceedings. ( i ) This condition, however, became 
so intolerable, owing to the expense of attending court and the 
delays in obtaining justice, that in 1769, Circuit Courts were 
established in the various counties. The amount of business 
transacted in the courts was not large; as it is said that in the 
seven years before the War of the Revolution, the average number 
of judgments yearly in the whole Colony was only 236. 

The first Chief Justice of record was Edmund Bohun, in 1698, 
a man of no legal training; the next, in 1702, Nicholas Trott, an 
English lawyer of distinction. He remained in office for many 
years, finally becoming so arbitrary and so obnoxious that, in 
1717, articles of complaint were brought by "Richard Allein, 
Richard Whittaker and other practitioners of law," alleging that 
he had "contrived many ways to multiply and increase his fees " 



(i) It is curious to note that the old English Courts of Pipowder (or 
Market Courts) were revived in South Carolina from 1723 to 1738. 
See Pipowder Courts, Green Bag, Vol. V. 



no HARVARD LAW SCHOOL. 

that he gave advice in causes depending in his courts, and not 
only acted as counsellor in these cases, but had drawn deeds be- 
tween party and party, and that the whole judicial power of the 
province was lodged in his hands, he being, at the same time, 
sole judge of the Court of Common Pleas, Kings Bench, Vice Ad- 
miralty, also member of the Council and hence Judge of the 
Court of Chancery. The Governor, Council and Assembly joined 
in an address to the Proprietary for his removal, which request 
was not, however, granted. 

From 1698 to 1776, there were fourteen Chief Justices, and 
from 1736 to 1776 twenty-seven associate judges; but scarcely 
anything is known concerning them, except that they had little 
legal training. 

As William Henry Drayton, (later Chief Justice), writing 
about the time of the Revolution, says, "A few years ago, the 
bench of justice in this Colony was filled with men of property, 
and if all of them were not learned in the law, there were some 
among them who taught their brethren to administer justice with 
public approbation; and one in particular, (Rawlins Lowndes) 
had so well digested his reading, although he had never eat com- 
mons at the Temple, that he was without dispute, at least, equal 
to the law learning of the present bench."(i) 

At the beginning of the Revolution the only native American 
on the bench was Drayton. 

Of the early lawyers little is known. In the twenty-seven years 
prior to the Revolution, the whole number admitted to the Bar 
was 58; in the twenty-five years after the Revolution, 238 were 
admitted in Charleston alone. 

In 1761, at the time when John Rutledge, the earliest of South 
Carolina's great lawyers, began to practice, the Bar consisted of 
probably not more than twenty. But though small in numbers, 
it was more highly educated than any Bar in America, for a 
considerable proportion of its members had received their legal 
training in England. Thus, William Wragg, one of the earliest 
lawyers, born in 1741, was an English barrister; Peter Manigault, 
born in 1731, was a barrister of the Inner Temple, and returned 
to practice in South Carolina in 1754. John Rutledge, born in 
1739, studied in the office of James Parsons, at Charleston, and 



(i) Life and Times of William Lowndes, by Mrs. St. J. Ravenel. 



SOUTH CAROLINA LAWYERS. 1 1 1 

became a barrister of the Inner Temple in 1761. Returning to 
Charleston, he at once took rank as the ablest lawyer of the 
Province, headed the Stamp Act opposition, was one of the 
Signers, and became Chief Justice of the State Court in 1791, 
and of the United States Supreme Court in 1798. William 
Henry Drayton, "the Sam Adams of the South", born in 1742, 
was educated at Oxford. Thomas Hey ward, born in 1746, be- 
came a barrister of the Middle Temple, and was one of the Sign- 
ers. Thomas Lynch, Jr., born in 1749, a barrister of the Middle 
Temple, was the third Signer from South Carolina. 

Of the generation of lawyers who came into practice at the 
time of the Revolution who studied in the Inner Temple were 
John Laurens, born in 1755; John Julian Pringle, born in 1753; 
Edward Rutledge, born in 1749; Charles Cotesworth Pinckney, 
born in 1746; Thomas Pinckney, born in 1750; William H. 
Gibbes, born in 1754; and Hugh Rutledge, born in 1741. John 
F. Grimke, Theodore Gaillard and Arthur Middleton received 
their education in English universities. Aedanus Burke, born in 
1743, was educated as a priest in the College of St. Omer in 
France. Richard Hutson, born in 1747, and later Chancellor, was 
a graduate of Princeton. 

After the Revolution almost all the lawyers of distinction were 
college graduates. ( i ) 

NOTE. 

For authorities in general see : 

History of South Carolina, by David Ramsay (1808). 

Sketch of History of South Carolina, by W. J. Revers (1856). 



( i ) From Princeton graduated Timothy Ford ; William Johnson, 
(born in 1771 later Judge of United States Supreme Court) ; John Tay- 
lor, Charles J. Colcott, Daniel E. Huger, John McCrady. 

From Yale graduated Abraham Nott, Isaac Griggs, Enoch Hanford, 
John Gadsen. 

From Litchfield Law School graduated William D. Martin, John C. 
Calhoun, Benjamin C. Yancey, Edmund Bacon. 

From Brown graduated John Dick Witherspoon, Abraham Blanding. 

Among those who received no collegiate education outside of South 
Carolina were the famous chancellor Henry William De Saussure, the 
"Kent of South Carolina," (born in 1763, studied law with Jared 
Ingersoll and admitted to Philadelphia Bar in 1789) ; Elihu H. Bay. 
Judge and reporter of decisions, (born in 1754) ; Henry Pendleton, Keat- 
ing Lewis Simons, Charles Pinckney, Thomas Lee, (born in 1769), Robert 
Y. Hayne, (born in 1791), Hugh Swinton Legare, (born in 1797), William 
Lowndes, (born in 1782). 

The principal offices for study were those of Charles Cotesworth Pick- 
ney, (who numbered among his students William Johnson, John Taylor, 
John McCrady) and of John and Edward Rutledge. 



ii2 HARVARD LAW SCHOOL. 

View of the Constitution of the British Colonies in North 
America and the West Indies, by Anthony Stokes (1783). 

Glance at our Colonial Bar, Green Bag. Vol. XI. 

Willis on Law and Lawyers, Amer. Quarterly Review. Vol. 
XIV and Vol. XV. 

Bench and Bar of South Carolina, by John B. O'Neall (1859). 

Old Virginia and her Neighbors, by John Fiske (1897). 

Life and Times of William Loivndes, by Mrs. St. J. Ravenel 
(1901). 

NORTH CAROLINA. 

In North Carolina, John Locke's Constitution, framed in 1669, 
called the Grand Model, prescribed a form of government and 
an institution of law and law procedure, differing from anything 
in America. Proving too impracticable and chimerical, it was 
abrogated in 1693; and, 1715, an act was passed, providing that 
the Common Law should be in force, "so far as shall be com- 
patible with our way of living and trade", and certain specific 
English statutes were also adopted. No compilation of laws 
was made until 1732. A Commission was appointed to revise 
the laws in 1746, and again in 1776; and the first printed collec- 
tion of laws was in 1751. 

At first the Governor and Council acted as the Court. Later 
a General Court, consisting of a Chief Justice, and two to ten 
assistant judges, was established. The earliest Chief Justice 
named in the Records was the famous Anthony Ashley Cooper, 
Lord Shaftesbury, who exercised the duties of his post through 
a deputy. Only a few of the Chief Justices prior to 1746 were 
trained lawyers, and when such, they were English barristers 
sent from England, the first barrister coming in 1731 ; but in 
1746, a Superior Court was constituted, the judges of which were 
required by statute to be lawyers. 

Under Locke's Constitution, the prejudice against lawyers was 
shown by the provisions in the loth article, that "it shall be a 
base and vile thing to plead for money or reward", and that no 
one but a near kinsman should plead another's cause, until he 
had taken an oath in open court that he had not "directly or indi- 
rectly bargained for money or other reward." It was also pro- 
vided, that "since multiplicity of comments as well as of laws 
have great inconveniences and serve only to obscure and perplex, 
all manner of comments and expositions on any part of these 



NORTH CAROLINA LAWYERS. 113 

fundamental constitutions or on any part of the common or 
statute law of Carolina, are absolutely prohibited." 

Early in the i8th Century, however, attorneys and advocates 
were allowed to practice; but the Court ordered that they must 
be licensed by the Chief Justice and Judges; and that no sheriff, 
undersheriff, or clerk should plead as attorney at law. 

In 1743, attorneys were made liable for double damages to 
clients suffering from negligence in the management of a cause. 

Of North Carolina lawyers little is recorded ; but the condition 
of education in the Colony was unfavorable to the development 
of native talent. 

One of the earliest lawyers of note was Thomas Barker, one 
of the commissioners appointed to revise the Statutes in 1746, the 
early friend and instructor of Samuel Johnston. The latter was 
born in Scotland in 1733, and was "pre-eminent in the province 
for ability, learning, wealth, and character." He was Governor 
of the State in 1782, and a Judge of the Superior Court in 1800. 

Other early lawyers were Henry Eustace McCulloch, a barris- 
ter of the Inner Temple, who practised in the Province from 
1761 to 1767; Thomas Jones and Alexander Elmsly, both English 
lawyers ; John Dawson, a Virginian ; William Avery, born in 
Connecticut, a Princeton graduate, and Attorney General in 1777; 
Jasper Charlton; William Gumming and Robert Smith. 

Undoubtedly the most prominent of all the North Carolina 
Bar was James Iredell, who was born in England in 1751, and 
who came to the Province in 1768, where he studied law under 
Samuel Johnston, and in 1770, "with the approbation and rec- 
ommendation of Chief Justice Howard, received from Gover- 
nor Tryon a license to practise law in all the Inferior Courts." 
In 1771, he was licensed by the Governor to practise in the 
Superior Courts. 

Of the conditions of the legal profession in North Carolina in 
those days the following graphic account is given(i) : 

Upon horseback, often alone, through the dense forests and 
across the almost trackless Savannahs . . . the lawyer of 
that day travelled his weary circuit. . . . Accommodations 
by the way were generally despicably vile ; inns or taverns in the 
true sense had no existence. After the fatigue of a long day's 

(i) Life and Correspondence of James Iredell, by Griffith J. McRee 
(1857). 



Ii4 HARVARD LAW SCHOOL. 

journey the wayworn traveller was often content with a bench 
by the hearth of some primitive log cabin Books he had not, 
save a volume or two stuffed into his saddle-bags with a scanty 
supply of apparel. At this period, too, in what was then 
called the "back country", now the interior of North Caro- 
lina, the gentlemen of the bar were objects of obloquy and 
denunciation to a generally poor and illiterate people, and fre- 
quently experienced at their hands the grossest outrages 

The people justly complained of the burden of their taxes a 
burden augmented by the extortion of illegal fees by the officers 
of the courts ; but with a blind prejudice, many of them only 
saw in the profession, those who defended their oppressors, and 
who prosecuted them when their opposition broke out into acts 
of violence. Uncultivated settlers who subdue the wilderness are 
apt to look with suspicion upon the proprietor of the soil when 
he demands rent for his land or its value ; and the attorneys 
employed to bring ejectments or sue for use, as the venal in- 
struments of tyranny, bandits hired by gold to despoil them of 
the fruits of their honest industry. 

In 1777, Iredell became Judge of the Superior Court, resigning 
the next year. In 1789, he was appointed Judge of the Supreme 
Court of the United States. 

Contemporary with him, after the Revolution, were Abner 
Maurice Moore ; Archibald McClaine ; Alfred Moore, who, born 
in 1755, a student at Harvard but not a graduate, succeeded Ire- 
dell in the United States Supreme Court ; William R. Davie, born 
in England in 1756, a Princeton graduate of 1776, admitted to 
practise in North Carolina in 1780, and of whom it was said "if 
he had superiors in legal learning and close reasoning, he as an 
orator was inferior to none in the State ;" John Hayward, who 
was born in 1753, became Attorney General in 1791 and pub- 
lished his reports in 

Both of the signers of the Declaration of Independence from 
North Carolina, were lawyers. One, William Hooper, was born 
in Boston in 1742, a graduate of Harvard in 1760, and a student 
under James Otis in 1761, the same year in which Otis argued 
the Writs of Assistance. He came to North Carolina in 1767, 
and within six years became a leading member of the Bar. The 
other, John Penn, was born in Virginia in 1741, a student under 
Edmund Pendleton, and removed to North Carolina in 1774. 

The early courts after the Revolution under the State Judiciary 
Act of 1777 were composed of men of very inferior learning and 
personality; and Iredell's resignation in 1778 from the court 



GEORGIA LAWYERS. 115 

was due to the fact that "unable to determine the opinions of the 
court, he was unwilling to share the discredit of ignorance or par- 
ticipate in the odium of illegal decisions." 

NOTE. 

For authorities in general, see : 

History of North Carolina, by F. L. Hawke (1889). 

English Common La^v in the early American Colonies, by 
Paul F. Reinsch. 

Sanderson's Lives of the Signers. 

Life and Correspondence of James Iredell, by Griffith J. Mc- 
Ree (1857). 

Address on the Life of William Hooper, by Edward A. Al- 
derman (1894). 

Life of William R. Davie, in Spark's American Biography. 

The Supreme Court of North Carolina, by Walter Clark, Green 
Bag, Vol. IV. 

Alfred Moore, Green Bag, Vol. XII. 

A Masterpiece of Constitutional Folly, Green Bag, Vol. XII. 

GEORGIA. 

No laws were passed by the General Assembly of Georgia until 
1755, the Colony having previously been under the arbitrary rule 
of the Proprietor. 

In 1762, an act was passed to encourage a printer to set up a 
printing press and to print the laws, and in 1779 the first digest 
of laws was made. 

The first court of Georgia, held at Savannah in 1733, was 
lawyerless ; but when Georgia became a Crown Colony in 1752, the 
Chief Justice was required to be an English barrister. The three 
assistant judges were usually laymen of high standing in the com- 
munity, and received no salaries. 

In 1789, the Superior Court of the State was established. The 
native Bar of the early i8th Century was small ; but a few 
English barristers practised in Savannah. George Walton, one 
of the Signers, who was born in Virginia in 1740, admitted to 
the Bar there in 1774, and removed to Georgia, is one of the few 
American lawyers of the State whose name survives. 

Of the Bar, Stokes wrote in 1783 : 

The practical part has so employed the attention of colonial 
advocates that few have leisure to attain to any considerable de- 
gree of knowledge and the advocate who has the greatest fluency 



ii6 HARVARD LAW SCHOOL. 

may sometimes be considered as the ablest lawyer. . . . Most 
of the questions which arise in the colonies are founded in litiga- 
tion and not in intricacy. 

Of Georgia's lawyers of the later years of the i8th Century, 
four have taken places well at the front of the American Bar: 
Abraham Bald win (i), John McPherson Berrien(2), William 
H. Crawford(3) and James M. Wayne (4). 

The Bar, though small, contained, however, like that of South 
Carolina, a large proportion of educated men. In Miller's Bench 
and Bar of Georgia, published in 1858, thirty-three lawyers are 
mentioned, of whom nineteen were born prior to 1800. Of these, 
one was a graduate of Yale, Abraham Baldwin; five of Prince- 
ton, Berrien, W'ayne, John Forsythe, Peter Early and Walter T. 
Colquitt; and four of Litchfield Law School (to which institu- 
tion, it is said, Georgia sent more students than any State out- 
side of New England and New York) Lucius Q. C. Lamar, 
William C. Dawson, Thomas F. Foster and Robert Rutherford. 

NOTE. 

For authorities in general see : 

Bench and Bar of Georgia, by Stephen F. Miller (1858). 

Glance at our Colonial Bar, Green Bag, Vol. XI. 

History of Georgia, by Charles C. Jones (1883). 

History of Augusta, by Salem Dutcher (1890). 

Georgia Law Books, by Joseph R. Lamar in Georgia Bar 
Assn. Proc. Vol. XV. 

A Lawyerless Court, by Walter G. Charlton in Georgia Bar 
Assn. Proc. Vol. XVIII. ' 

Georgia Lawyers Viewed by a Woman, in Georgia Bar Assn. 
Proc. Vol. XVIII. 



(1) Born in Connecticut in 1754, a Yale graduate of 1772, U. S. Senator 
1799-1807. 

(2) Born in 1781, Princeton graduate of 1796, Judge U. S. District 
Court 1810-21, U. S. Senator 1825-9, 1840-52, Atty. Gen. of United States 
1829-31. 

(3) Born in 1772, U. S. Senator 1807-16. 

(4) Born in 1790, Princeton graduate of 1808, Judge of Georgia Su- 
perior Court 1824-29, Judge of U. S. Supreme Court 1835. 



CHAPTER V. 
THE LAW AND LAWYERS IN ENGLAND IN THE iSxn CENTURY. 



The i8th Century in England was a period in which the 
law itself was being rapidly made, and great judges were mak- 
ing it. 

In 1700, Chief Justice Holt came upon the King's Bench; 
and in 1704, (a year before the birth of Lord Mansfield) gave 
forth his epochal decision in Coggs v. Barnard (2 Lord Raym. 
909). This was eighteen years before the first legally trained 
lawyer took his place on the Massachusetts Bench, three years 
after the first lawyer sat on the Pennsylvania Bench, and eleven 
years before the first educated lawyers appeared at the New York 
Bar. 

In 1756, Sir William Murray, Lord Mansfield, became Lord 
Chief Justice of England. This was the yeair when John Adams 
began to study law, four years before Patrick Henry was ad- 
mitted to the Bar, and while John Rutledge was studying in 
the Temple. 

The Leading Cases, (so called by the text book writers of the 
I9th Century) were, between 1 1700 to 1785, coming fresh from 
the printing press each year. Cases now familiar to law stu- 
dents as historical landmarks were then of vivid interest to the 
practising lawyers of the American Colonies. 

Thus in 1711 came the first case on restraint of trade, Mitchell v. 
Reynolds (i P. Wms.) ; in 1719, the case of Cumber v. Wane (i 
Strange 426), involving the doctrine of consideration, was de- 
cided; in 1722, Armory v. Delamire (i Strange 504), the chimney 
sweep and the jeweler case; in 1750, Penn v. Baltimore (i Ves. 
444) ; in 1773, Scott v. Shepard (2 W. Bl. 892), the Squib case, 
as to actions of trespass; in 1774, Fabrigas v. Mostyn (Camp. 
161), on transitory actions; in 1789, Palsey v. Freeman (3 T. R. 
51), establishing the law of deceit ; and many others whose names 
are like old friends to the lawyer and student of today. 

In these years too occurred the great State trials, like those 
of the Jacobites, Lord Kilmarnock, Lord Balmerino, and Lord 
Lovat for treason, before Lord Hardwicke in the House of Lords 



n8 HARVARD LAW SCHOOL. 

in 1746; the trial of John Wilkes for seditious libel, before Lord 
Camden in the Court of Common Pleas, in 1763 ; Rex v. Wood- 
fall, in 1770, as to the publication of the Junius letters, the trial of 
Lord George Gordon in 1781 ; the famous legal battle on the law 
of libel, in the trial of the dean of St. Asaphs, in 1783 ; the begin- 
ning of the impeachment trial of Warren Hastings, in 1787. 

The status of Common Law in England, as it was when Lord 
Mansfield came on the bench, is thus described by Lord Camp- 
bell : 

This system was not at all badly adapted to the condition of 
England in the Norman and early Plantagenet reigns, when it 
sprang up, land being then the only property worth consider- 
ing, and the wants of society only requiring rules to be laid down 
by public authority for ascertaining the different rights and inter- 
ests arising out of land, and determining how they should be 
enjoyed, alienated, and transmitted from one generation to an- 
other. In the Reign of George II, England had grown into the 
greatest manufacturing and commercial country in the world, 
while her jurisprudence had by no means been expanded or 
developed in the same proportion. The legislature had literally 
done nothing to supply the insufficiency of feudal law to regu- 
late the concerns of a trading population ; and the Common 
Law Judges had, generally speaking, been too unenlightened and 
too timorous to be of much service in improving our code by 
judicial decisions. Hence, when questions necessarily arose re- 
specting the buying and selling of goods, respecting the affreight- 
ment of ships, respecting marine insurances, and respecting bills 
of exchange and promissory notes, no one knew how they were 
to be determined. Not a treatise had been published upon any 
of these subjects, and no cases respecting them were to be found 
in our books of reports, which swarmed with decisions about 
lords and villeins, about marshaling the champions upon the 
trial of a writ of right by battle, and about the customs of 
manors, whereby an unchaste widow might save the forfeiture 
of her dower by riding on a black ram and in plain language con- 
fessing her offense. Lord Hardwicke had done much to improve 
and systematize Equity but proceedings were still carried on 
in the courts of Common Law much in the same style as in the 
days of Sir Robert Tresilian and Sir William Gascoigne. Mer- 
cantile questions were so ignorantly treated when they came into 
Westminster Hall, that they were usually settled by private arbi- 
tration among the merchants themselves. If an action turning 
upon a mercantile question was brought in a court of law, the 
judge submitted it to the jury, who determined it according to 
their own notions of what was fair, and no general rule was laid 



18TH CENTURY ENGLAND. 119 

down which couJd afterwards be referred to for the purpose of 
settling similar disputes.(i) 

With the latter half of the Century, however, began the mod- 
ern common law of business and personal relations, as distin- 
guished from the old feudal common law, confined as it was to 
questions of realty and pleading. The wide range of contract law 
began to be opened out. The doctrines of the laws of bills and 
notes, insurance, and maritime commerce became fixed. The law 
of evidence, none of the present rules of which, except that ex- 
cluding hearsay, were well established prior to 1688, was becom- 
ing well developed. On the other hand, the law of torts was 
hardly in existence before 1800 ; there were no negligence cases ; 
the great contests of Erskine and Fox on the law of libel had not 
begun. The law of business corporations did not exist. 

It was not until 1733, that Sir Peter King, Lord Chancellor, 
finally prevailed upon Parliament to provide that the Eng- 
lish language should thenceforth be used in all law proceedings, 
although Lord Chief Justice Raymond and all other judges had 
opposed the change. 

Coincident with the opinions on modern Common Law had been 
the advent of the first law reports of anything like modern accur- 
acy Lord Raymond's Reports, Salkeld and Comyns (of indif- 
ferent worth but covering Lord Holt's career) ; Burrow's Reports 
(1757-1771), Cowper (1774-1778) and Douglas (1778-1784) 
covering Lord Mansfield's decisions; and Term Reports (1785- 
1800) covering the term of Chief Justice Kenyon. 

Of Chancery Reports, those of Peere Williams (1695-1736) 
were the chief source of study in the early part of the Century ; 
while Atkyns, Vesey Sr. and Ambler included the decisions of the 
greatest of all the Chancellors, Philip Yorke, (Lord Hardwicke) 
(1737-1756); and Cox and Vescy Jr. reported the decisions of 
Charles Pratt, (Earl Camden) and of Lord Thuirlow. 

Nevertheless, even as late as 1776, hardly more than one hun- 
dred and fifty volumes of reports were in existence in England. 
And probably not one half of these, had crossed the Atlantic; 
while hardly thirty were in familiar use in America. 

Of law books of importance, the following were published 
during this Century. Hawkins Pleas of the Crown was published 
first in 1716, Hale's Pleas of the Crown in 1736, and Foster's 

(i) Campbell's Lives of the Chief Justices, Vol. III., p. 299. 



120 HARVARD LAW SCHOOL. 

in 1763. Wood's Institutes appeared in 1722. Bacon's Abridgment 
Was published in 1736; Jacob's Law Dictionary in 1729; Fon- 
blanque's Equity in 1737 ;(i) Viner's Digest from 1742 to 1753; 
Comyn's Digest appeared between 1762 and 1767 ; Bohun's Declar- 
ation in 1743; Lilly's Register in 1745; Rutherforth's Institutes 
of Natural Law from 1754-56; Fearne's Contingent Remainders 
in 1772; Reeves' History of English Law to the time of Elisa- 
beth in 1787. Of Blackstone's Commentaries, in 1765, mention will 
be made later. At the very end of the Century appeared Woode- 
son's Elements of Jurisprudence in 1783, Park's Marine Insur- 
ance in 1786, Jones' Bailments in 1790, Powell's Contracts in 1790, 
Bayley's Bills and Notes in 1789, Chitty's Bills and Notes, and 
Tidd's Practice in 1799. 

This list after all is a scanty one ; but in America few 
of these text books were known, and fewer still were to be ob- 
tained. 

The education of a law student in England during this Cen- 
tury was of the most meagre description. The old mootings and 
readings in the Inns of Courts had practically died out. 

Roger North wrote some years before his death (which oc- 
curred in 1733) a Discourse on the Study of the Law in which 
he said(2) : 

Of all the professions in the world that pretend to book learn- 
ing, none is so destitute of institution as that of the Common 
Law. Academick studies which take in that of the civil law, 
have tutors and professors to aid them, and the students are 
entertained in colleges under a discipline, in the midst of socie- 
ties, that are, or should be, devoted to study; which encourages, 
as well as demonstrates, such methods in general as everyone may 
easily apply to his own particular use. But for the Common Law, 
however, there are societies which have the outward show or 
pretense of Collegiate Institution, yet in reality nothing of that 
sort is now to be found in them; and whereas in more ancient 
times there were exercises used in the Hall, they were more 
for probation than for institution ; now even those are shrunk into 
mere form, and that preserved only for conformity to rules, that 
gentlemen by tale of appearances in exercises rather than by any 
sort of performances might be entitled to be called to the Bar. 

(1) Up to the publication of Joseph Story's books on Equity, Fon- 
blanque's Equity was for one hundred years the best elementary book on 
equity in use in America. "It finally expired under the weight of its own 
notes" says J. C. Marvin in his Legal Bibliography. 

(2) This discourse was not published until 1824. See Early History of 
Les.al Studies in England, by Joseph Walton, Amer. Bar Assn. Proc. Vol. 
XXII (1899). 



18TH CENTURY ENGLAND. 121 

And it has been recently said : 

There was really no legal education at the Inns of Court in 
the year 1800. In the days of Queen Elizabeth and James I 
regular courses of study were prescribed, attendance at moots 
and in hall was insisted on and discipline was vigorously 
maintained. But that had all fallen into misuse or lingered only 
in a few antiquated forms. There were still a few so called exer- 
cises. A student after dining in hall was provided with a printed 
form of questions. Armed with this he would trembling approach 
the dais and say to the first good natured looking bencher whose 
eyes he could catch, "If I were seized in fee of Blackacre" The 
bencher smiled and bowed. The student continuing the enuncia- 
tion of the problem concluding boldly with these words which 
were not on the paper "I maintain the widow shall have her 
dower." The bencher bowed again and the student retired hav- 
ing "kept his exercise." Any student who had eaten the pre- 
scribed number of dinners and paid his fees was made a coun- 
sellor at law ; the ceremony was conducted like the return of 
stolen goods "without any questions being asked" ; he need never 
have read a single page of any law book. S. Ireland in his his- 
torical account of the Inns of Court published in 1800 adverts to 
the "ceremony of mootyng" as "a custom long since in disuse 
except in New Inn for the benefit of students of the Middle Tem- 
ple where about a year and a half since we are informed a mootyng 
took place to the no small diversion of the passers by." 

The students had in fact to teach each other. There was in 
Tidd's office a society which met once a week exclusively for the 
discussion of legal questions. It was modelled upon the plan of 
the Court at Westminster with a Chief Justice and counsel.(i) 

Students of the i8th Century gave their time largely to the 
pleasures of London. The Spectator of March 24, 1710, speaks of 
that "numberless branch of peaceable lawyers those young men 
who being placed in the Inns of Court in order to study the laws 
of their country frequent the playhouse more than Westminster 
Hall and are seen in all public assemblies except in a court of 
justice." 

As stated above, no qualifications were required by the Benchers 
of the Inns of those whom they were supposed to examine to be 
called as barristers, except the proof that they had kept twelve 
terms by eating the requisite number of dinners in the Inn. 

Some few students, like Lord Thurlow about 1750, were placed 
in the office of a solicitor where they learned how actions were 
commenced and conducted, together with the practice of the courts. 

(r) A Century of Law Reform, Chap. I., by W. B. Odgers (1901). 



122 HARVARD LAW SCHOOL. 

It was not, however, until the latter part of the i8th Century 
that the regular practice began of studying in the office of some 
distinguished special pleader. This "pupilizing system" was intro- 
duced by the special pleaders Thomas Warren and Mr. (later Mr. 
Justice) Buller; and in their offices and in those of George Wood, 
Tindal and Tidd were educated many of England's most famous 
judges; Erskine, Copley (Lord Lyndhurst), Cottenham, Camp- 
bell, Brougham, Parke (Lord Wenleysdale), Abbott (Lord Ten- 
terden), and Denman. 

The life of a student in such an office is well described by Lord 
Campbell in 1803 : 

I got a letter from Mackintosh to Tidd the most eminent special 
pleader in England. With him I begin my studies in arte placi- 
tandi next week. He has six or a dozen pupils besides, dashing 
young fellows. . . . The terms of all special pleaders are 
the same, viz: 100 guineas for one year or 200 guineas for 
three years. Tidd is by far the first man in this line. He has 
constantly from 10 to 15 pupils .... It is impossible for 
you to form any conception of the idleness of most of the nascent 
plea drawers. They drop into the office for half an hour on their 
way to Bond Street. For weeks and months they remain away 
altogether. When they are assembled the subjects discussed are 
not cases and precedents but the particulars of a new fashion in 
dress or the respective merits of the Young Chicken and Signora 
Crassini .... Nothing but the irresistible motives which 
spur me on could enable me to combat the disgust inspired by 
special pleading. It is founded upon reason but rude, rude is 
the superstructure. This however is now a necessary post in 
carrying on your professional advances. The four judges who 
preside in the court of King's Bench all practised as special 
pleaders .... I continue to go regularly at eleven and stay 
till four .... In Tidd's office there was a society which 
met weekly for the discussion of juridical questions. This con- 
sisted of his pupils for the time being 1 (among them Pepys) and 
any former pupils who chose to attend (among them Denman and 
Copley) .... Special pleaders in general are not at the 
Bar. One or two who remain pleaders permanently are consid- 
ered as something between attorneys and barristers but the com- 
mon way is for a young man to plead a few years under the bar 
as they call it before being called. It is easier to get this kind of 
business than briefs in court and vow thus gradually form and 
extend your connections. Tidd is a man of very low origin 
.He was clerk to an eminent man in this line and his master dying 
he set up for himself He published a Practice of the Court of 
King's Bench which has passed through several editions and 
gained him high celebrity. He makes between 2000 and 3000 



18TH CENTURY ENGLAND. 123 

pounds a year .... He takes very little pains with his 
pupils. He comes about one o'clock, saying "How d'ye do" as 
he passes into his own room, remains there until four or five 
correcting what has been drawn, nods to any straggler who is 
still remaining and returns to Vauxhall for the day. His office 
however for a man really desirous and determined to improve 
himself is in my mind far the best in London. You see here 
such a quantity and such a variety of business that you may 
learn more in six months than by reading or hearing lectures 
for seven years. ( I ) 

Of the course pursued by a student who could not enter a 
special pleader's office, Campbell's account of the student days of 
John Scott (Lord Eldon) gives the best idea 1(2) 

The custom having been introduced for law students to become 
pupils of a special pleader or equity draughtsman, Mr. Scott 
would have been glad to have conformed to it if the state of his 
finances would have enabled him to pay the usual fee of a hundred 

guineas Mr. Duane, an eminent Catholic conveyancer 

agreed to let him have the run of his chambers for six months 
without a fee. (Conveyancing was chiefly in the hands of Roman 
Catholics, being prevented from being called to the Bar they prac- 
ticed successfully in Chambers.) To supply the deficiency arising 
from his not having been with a special pleader or equity drafts- 
man he copied all the MSS forms he could lay his hands upon. 

He went through a systematic course of reports and coming 
down to a Reporter of such low credit as Vernon he could tell 
the names of most of the cases reported with the volume and 
page where they could be found. 

We are not told that he ever dipped into the Code, the Pan- 
dects, or the Institutes of Justinian; or that he found any pleasure 
in Puffendorf or Grotius or that he ever formed the slightest 
acquaintance with D'Agnesseau or Pothier. Nor in any of his 
arguments at the Bar or judgments fromi the Bench does he 
as far as I am aware ever refer to the civil law or any foreign 
writer as authority or by way of illustration. 

The course of reading advisable for a student either in his own 
or a special pleader's chambers was stated by Lord Chief Jus- 
tice Reeves in 1787 as follows: 

Read Wood's Institutes cursorily and for explanation of the 
same, Jacob's Dictionary. Next strike out what lights you can 
from Bohun's Institutio Legalis, and Jacob's Practising Attor- 

(1) Life of Lord Campbell, Vol. I. 

(2) Campbell's Lives of the Lord Chancellors, Vol. IX. 



124 HARVARD LAW SCHOOL. 

ney's Companion, and the like, helping yourself by Indexes. Then 
read and consider Littleton's Tenures without notes and abridge 
it. Then venture on Coke's Commentaries. After reading it once, 
read it again, for it will require many readings. Abridge it. 
Commonplace it. Make it your own, applying to it the faculties 
of your mind. Then read Sergeant Hawkins to throw light on 
Lord Coke. Then read Wood again to throw light on Sergeant 
Hawkins. And then read the statutes at large to throw light 
on Mr. Wood. 

In spite of this elaborate course for law students, the Bibliotheca 
Legum Angliae by John Worrall and Edward Brooke, pub- 
lished in 1788, mentions as the only books expressly intended 
for students ; Blackstone, Eunomus or Dialogues upon the Law 
and Constitution of England; and the Elements of Jurisprudence 
by Dr. Wooddeson, (Blackstone's successor as Vinerian Professor 
at Oxford). To these may be added Francis S. Sullivan's Lec- 
tures on t]ie Constitution and Laws of England, published in 
1776. 

Undoubtedly the real education gained by a law student in 
the 1 8th Century was through attendance at the various courts. 

Dr. Johnson said to Boswell "y u must take care to attend con- 
stantly in Westminster Hall, both to mind your business, as it is 
almost all learnt there, (for nobody reads now), and to show 
that you want to have business." 

Thus, it is said that Lord Mansfield's chief resource, in 1730 
when studying at Lincoln's Inn, was in listening to the judgments 
of Lord Chief Justice Raymond in King's Bench. To such an 
extent was he influenced by this method of gaining a liberal 
knowledge of the law that later, when he became a judge himself, 
he was in the habit, in giving his judgments, of explaining the 
intricacies of the cases before him and the reasons of his judg- 
ments "for the sake of the students."(i) He even caused a box 
in the court of King's Bench to be set apart for students to which 
students and barristers "flock by scores." 

So too, it was said of John Scott (Lord Eldon), that "he dili- 
gently attended the courts in Westminster Hall (1775) with his 
note book in his hand. Lord Bathurst presiding in the court of 
Chancery, from whom little was to be learned, he took his place 
in the students box in the court of King's Bench, where Lord 
Mansfield shone in the zenith of his fame." 



(i) Campbell's Lives of the Lord Chief Justices. Life of Lord Camp- 
bell. 



18TH CENTURY ENGLAND. 125 

This practice of Lord Mansfield was followed also by Lord Ken- 
yon ; and, as Campbell writes in his diary, "our box being near 
the bench at Guildhall, Lord Kenyon, while the counsel were 
speaking, would bring the record to us and explain the issue 
joined upon it which the jury were to try." 

Notwithstanding the uselessness of the Inns of Courts as 
places of education, the i8th Century saw most of England's 
great lawyers called as barristers by these Inns; thus in the 
Inner Temple were,Thurlow,Comyns, Wedderburn (Lord Lough- 
borough), Burrow, Lord Bathurst, Charles Talbot, George Gren- 
ville, Pratt (Lord Camden), and Abbott (Lord Tenterden) ; in 
the Middle Temple Kenyon, Dunning, Scott (Lord Eldon) ; in 
Lincoln's Inn Murray (Lord Mansfield), Charles Yorke, Law 
(Lord Ellenborough),Erskine, Copley (Lord Lyndhurst) ; Camp- 
bell in 1800, Denman in 1801, and Brougham in 1803. 



CHAPTER VI. 
A COLONIAL LAWYER'S EDUCATION IN THE i8TH CENTURY. 

Acquisition of the law is difficult without ready means of access 
to the books of the law and these were sadly lacking in the Ameri- 
can Provinces. 

Of the reports published in England by the time of the Ameri- 
can Revolution (not over one hundred and fifty in number) 
hardly more than thirty were in familiar use on this side of the 
Atlantic ; and the number of text books accessible was even 
smaller. Practically all the law books used in the Colonies were 
imported from England. 

Although printing had begun in the Colonies as early as 
1638-9, when Stephen Daye printed, at Cambridge, The Oath of 
a Freeman, the vast proportion of all books printed, from that 
date down to the American Revolution, was of a religious or his- 
torical nature. A careful examination of elaborate American 
Bibliographies discloses only thirty-three law books printed in 
America prior to 1776, including in this number at least eight 
repeated editions of the same book, (i) 

Most of these books were manuals for use of Justices of the 
Peace, Sheriffs and other petty officers, and treatises on the 
general rights of Englishmen, and especially of Juries. 

The first seven law books printed fairly illustrate the whole 
list. 

^go Reasons for Indictment of the Duke of York, Presented 
to the Grand Jury of Middlesex Saturday June 26, 1680 (Bos- 
ton). 

I 6o / 3 The Englishman's Right, A Dialogue between a Bar- 
rister at Law and a Juryman, plainly setting forth the antiquity, 
the excellent designed use and office and fust privileges of furies 
by the laws of England, by Sir John Hawles ( Boston) . 

" 170$ Lex Mercatoria Or the Just Rules of Commerce De- 
clared. And Offences against the Rules of Justice in the Dealings 
of men with one another selected, by Cotton Mather (Boston). 

(i) See the monumental work of Charles Evans, American Bibliogra- 
phy, Volumes I, II, III, (1893) and Isaiah Thomas History of ^Printing 
in America, published in Vol. VI of American Antiquarian Society Pro- 
ceedings (1874). 



LEGAL EDUCATION. 127 

1710 The Constable's Pocket Book : Or a Dialogue between 
an old Constable and a nezv, being a guide in their keeping the 
peace, by Nicholas Boone (Boston). 

1716 Le.v Parliamentaria or a Treatise on the Law and Custom, 
of the Parliaments of England, by George Petyt (London, printed 
and reprinted in N. Y. and sold by William and Andrew Brad- 
ford in N. Y. and Phila.). 

1720 The Security of Englishmen's Lives or the Trust, Power, 
and Duty of the Grand Jurys of England, by John Somers. 

1721 English liberties or the Freeborn Subjects' Inheritance, 
containing Magna Charta, Charta de Foresta, the Statute De 
Tallagio non Concedendo, the Habeas Corpus Act and several 
other statutes with comments on each of them. 

Likewise the Proceedings in Appeals of Murder; of Ship 
Money; of Tonnage and Poundage; of Parliaments and the 
qualification and choice of members; of the three estates and 
of the settlement of the Crown by Parliament. Together with a 
short history of the succession not by any hereditary right; Also 
a declaration of the liberties of the subject; and of the oath of 
allegiance and supremacy. The Petition of Right with a short 
but impartial relation of the difference between King Charles 
I and the Long Parliament concerning the Prerogative of the 
King, the Liberties of the Subject and the rise of the Civil Wars. 
Of trials by Jury and of the qualifications of Jurors; their pun- 
ishment for misbehaviour and of challenges to them. Lastly of 
Justices of the Peace, Coroners, Constables, Churchwardens, 
Overseers of the Poor, Surveyors of the Highway, etc. zvith many 
law cases throughout the whole and Compiled first by Henry Care 
and continued with large additions by W. N. of the Middle 
Temple Esq. The fifth edition. 

There was no law book written by an American until 1736, 
when George Webb of Virginia published: 

The Office and Authority of a Justice of the Peace. And also 
the duty of Sheriffs, Constables, Coroners, Church Wardens, 
Surveyors of Highzvays, Constables & Officers of Militia. To- 
gether with precedents of warrants, judgments, executions and 
other legal process, issuable by magistrates within their respective 
jurisdictions, civil or criminal, and the method of judicial pro- 
ceedings before justices of peace in matters witliin their cognis- 
ance out of sessions, collected from the common and statute laws 
of England and acts of assembly now in force; and adapted to the 
Constitution and practice of Virginia. By George Webb Gent, 
one of his Majesty's Justices of Peace of the County of New 
Kent (Williamsburg, Va., printed by William Parks 1736). 

There were also printed about thirty-five or forty books 
or pamphlets giving reports of famous cases, of which all but 



128 HARVARD LAW SCHOOL. 

five or six were of criminal trials, murder, burglary and piracy. 
The first of these was the trial of Thomas Southerland for murder 
in West Jersey, printed in 1692 ; the next, the trial of Col. Nicholas 
Bayard in New York for high treason, published in 1702. A report 
of a case in Chancery in New York was printed in 1727. In 1736, 
John Zenger printed a report of his famous trial for libel in New 
York in 1735. Two years later, another report of this trial was 
printed in Philadelphia, with comments by English barristers of 
the Barbadoes. 

1 : 753> a report of the case of William Fletcher v. William 
Vassall for defamation, tried in the Massachusetts Superior Court 
and pending on appeal to the King in Council, was printed. A 
report of the trial of Admiral Byng by Court martial in England 
was printed in 1757. A full account was printed in 1763 of the 
famous proceedings against John Wilkes in England, to which 
was appended "An Abstract of that Precious Jeutel of an English- 
man, the Habeas Corpus Act, also the North Briton No. 45 being 
the paper for which Mr. Wilkes was sent to the Tower Ad- 
dressed to All Lovers of Liberty." 

In 1770, a full report of the trial of the British soldiers in Bos- 
ton for murder was published. 

In 1774, was printed Arguments against Slavery in the case 
of Jam#s Somerset, a negro, lately determined in the Court of 
Kings Bench; wherein is attempted to demonstrate the unlaw- 
fulness of Domestic Slavery in England, by Francis Hargrave. 

No reprint was made in America, prior to 1776, of Coke, or of 
any standard English law writer, except Blackstone. There was 
no reprint of any English Law Reports. 

It is not surprising therefore that scant references are found 
to English cases, or law reports in the Colonial Court records; 
or that as a rule, the early cases contained citations of only the 
most elementary books, writers and principles, (i) 

(i) Thus Wood's Institutes and Hale's Analysis of the Law seem to 
have been favorite citations of Chief Justice Sewall in the early part of 
the i8th Century in Massachusetts. As early as 1730, in a printed argu- 
ment in the Superior Court in Massachusetts, citations are found of I 
Coke, 2 Coke Rep., i Modern, Hobart and Chancery Cases. 

In the Zenger libel case in New York in 1735 counsel quoted freely 
from Coke's Inst. 5 Coke Rep. Vaughn's Reports, Hawkins Pleas of the 
Crown, decisions of Lord Holt. 

Some of the lawyers who came over from England brought with them 
their acquired knowledge of English cases. Thus in South Carolina in 
a trial of pirates in 1718 the Chief Justice Trott (an English barrister; 
quotes Spelman, Godolphin, Coke's First Institute, Selden's Notes on 
Fortescue, Laws of Oleron, Digests and Pandects of Justinian. 



LEGAL EDUCATION. 129 

The early Colonial lawyers were hampered not only by this scant 
supply of law books and reports, but their difficulties in studying 
and determining the statutory law of the Colonies were even 
more serious. While Massachusetts and Connecticut printed 
their statutes reasonably early, the other colonies were late in 
doing so; thus the first collection of Colonial Laws of New 
York was published in 1710; the Acts and Laws of Rhode 
Island were first printed in 1730; those of New Jersey 
in 1732; those of Virginia in 1733; South Carolina in 1736; the 
first collection of Charters and other Public Acts relating to 
Pennsylvania in 1740 and all its laws in 1742; the laws, statutes, 
ordinances, and Constitution of the City of New York in 1749; 
Bacon's Compilation of Laws, in Maryland in 1765. 

So few copies were printed however that it was unusual for 
any lawyer to possess a full set of the local laws of his colony. 

"Even partial editions of Colonial laws (at least in Virginia) 
were extremely difficult to be obtained. Few gentlemen, even of 
the profession in this country, have ever been able to boast of 
possessing a complete collection of its laws," said St. George 
Tucker in 1803 in the preface to his edition of Blackstone. 

The few law books and reports that existed in America were 
to be found almost entirely in the libraries of the richer lawyers, 
(i) and sometimes among the books o<f the local clergymen. 
"Fifty or one hundred volumes were considered a very consid- 
erable collection of books for a lawyer's library." (2) The fol- 
lowing examples give some idea of the prevalent conditions. 
Even the largest library in the Colonies in the middle of the i8th 
Century, that of William Byrd the younger, in Virginia, con- 
tained only 350 volumes of law and statutes out of a total of 
3625(3). And in the library of the wealthy Ralph Wormeley of 
Rosequill, Virginia, who died in 1701, a graduate of Oriel College,. 
Oxford, and a trustee of William and Mary College, the only 
legal works were Coke's Reports, and Coke's Institutes, a col- 
lection of Virginia and of Massachusetts laws, a treatise on 
Maritime Law, and The office of the Justice of the Peace. 

Judge Edmund Trowbridge of Massachusetts possessed what 
Theophilus Parsons called "not only the best but probably the 

(1) George Bliss in his address to the Bar of Hampshire County Sept. 
26, 1826, says John Worthington, Joseph Hawley and Jonathan Bliss had 
the only law libraries in all Western Massachusetts. 

(2) Biographical Sketches of Eminent Lawyers, by S. L. Knapp, (1821). 

(3) Old Virginia, by John Fiske. 
9 



I 3 o HARVARD LAW SCHOOL. 

only thoroughly good one (law library) then in New England and 
even in America". It contained all the valuable books on English 
law then in existence, (i) John Adams complained of impover- 
ishing himself in order to provide himself with an adequate law 
library. 

President Stiles of Yale writes, in 1790, of Governor Griswold, 
who was Chief Justice in 1/69. that "he bought him the first con- 
siderable law library in Connecticut, took Att. oath an began practice 
in 1743 a great reader of law. Has a fine library of well chosen 
books about 550 volumes, now left in his study, besides a part 
of his library given to his son in Norwich about 200 Law Books, 
the rest history and divinity ".(2) 

The Philogrammatican Society of Connecticut, of which Jon- 
athan Trumbull was Secretary, purchased for its library in 1738, 
ninety- four works of which the following were the only law 
books Coke's Institute's, Lilly's Abridgment, Coke's Reports, 
Bohun's Declarations and Pleadings, Jacob's Introduction to Com- 
mon Civil and Canon /aw. (3) 

In the famous library of Rev. Thomas Prince of Boston, who 
died in 1758, out of about 1500 volumes, there were but five on the 
Common Law Britton (1640), English Liberties with Magna 
Chart a etc. (1721), Cowell's Institutes of English Law (1664), 
The Exact Constable, Church Warden, etc. (1682), Spelman's 
Archaeologus (1626). There was also a copy of the General 
Laws and Liberties (1672), Bacon's Novum Organum, Grotius on 
War and Peace (1680) and five books on civil and canon law. (4) 

The inventory of the library of Patrick Henry in 1799 dis- 
closed only 63 volumes of law books. 

In the Colonies outside of Massachusetts, Virginia, and Con- 
necticut, there were few law libraries of any size ; although, to- 
wards the time of the Revolution, the Pennsylvania lawyers who 
pursued their studies in the Inns of Courts in England accumu- 
lated considerable numbers of English books. 



(1) For interesting account of Judge Trowbridge and his libraries 
see Memoirs of Thco[>hilus Parsons, by T. Parsons Jr. 

(2) See MSS. Itinerary of a Journey from New London to Nezv 
Haven in 1790. 

(3) Journal of American History, Vol. I., No. i It is interesting to 
note that there were 13 books on medicine, a half dozen or so on history, 
Milton's Paradise Lost, a few volumes of the Spectator, and all the rest 
of the library consisted of religious works. 

(4) See Catalogue of Library of Rev. Tlwnias Prince (1846). 



LEGAL EDUCATION. 131 

Even the scanty supply of libraries which the Colonies pos- 
sessed was depleted at the time of the Revolution by the flight 
of Tory lawyers, most of whom were wealthy and carried their 
books away with them. ( I ) 

Some of these law libraries of refugees were confiscated how- 
ever, or were purchased for the Judges and lawyers by legislative 
resolves. Thus a resolve of the Massachusetts Legislature, in 
1779, authorized the sale to Hon. James Sullivan of the Modern 
Entries, Pleas of the Crown, Foster, and Hawkins and the Re- 
ports of Strange, Keyling and Burrow which had belonged to 
Benjamin Gridley who had become a royalist. (2) 

The College Libraries of the time contained practically no law 
books. In the first catalogue of the Harvard College Library 
(1723) works of Lord Bacon, Seldon, Grotius and seven volumes 
of Common Law Spelman's Glossary, Pulton's Statutes, 
Keble's Statutes, Coke's First and Second Institutes and two 
volumes of the Year Books were the only books on legal subjects. 
After the burning of the library in 1764, the following seven 
volumes, presented by Thomas Hollis constituted for many years 
the sole law library of the College 1(3) 

Bacon's Historical Discourse (1647). Burns' Ecclesiastical 
Law (1763). Carpenter D. P. Glossarium etc. (1766). Codex 
Theodosianus. Glanvill R. Tractatus de Legibus etc. (1604) 
Home's Mirror (1642). Prynne's Sovereigne Power of Par- 
liaments (1643) 

There were no public libraries in which books of law could be 
found. 

And as there were in the Colonies no collegiate law lectures 
before 1780, and no law schools before 1784, the young man who 
aspired to be a lawyer had two courses open to him. 

The first was, to pick up such scraps of knowledge of practice, 



(1) Peter S. DuPonceau who studied in Philadelphia in 1784 under 
William Lewis writes in 1837 (Penn. Hist. Soc. Proc. Vol. IV). 

"I had gone through Blackstone's Commentaries and Wood's Institutes 
and was advised to enter upon the study of Coke upon Littleton. I wanted 
to have a copy of the work all to myself to read it at my ease ; but it was 
not easy to be procured. After many fruitless applications I bethought 
myself of putting an advertisement in the papers in which I offered to 
give a set of Valin's Commentary on the French Marine Ordinances in ex- 
change. To my great astonishment and delight I received a note from 
Mr. Rawle then unknown to me, accepting the offer." 

(2) See Life and Writings of James Sullivan, by T. G. Amory. 

(3) See Preface to the first official Catalogue of Library of the Har- 
vard Law School, by Charles Sumner (1833) ; also edition of 1846. 



132 HARVARD LAW SCHOOL. 

as he could, by serving as a copyist or assistant in the clerk's 
office of some inferior or higher court, and by reading such books, 
Coke chiefly, as he could borrow. 

This was the exiguous training which many eminent lawyers 
received who could not afford the time or the money to adopt 
the second course. They are well described by Hugh Blair Grigs- 
by in his picture of the venerable James Nimmo of the Norfolk 
(Virginia) Bar in 1802: "He was of that substantial class of 
lawyers who, having received an elementary grounding in Latin 
and mathematics in the schools of the time, entered the clerk's 
office and served a term of duty within its precincts. He was 
thus well versed in the ordinary forms of the law and with the 
decision of the courts in leading cases. With such men as a class 
there was no great intimacy with the law as a science. As long 
as the case lay in the old routine, this class of lawyers would get 
along very well ; but novelties were unpleasant to them ; they 
hated the subleties of Special Pleading, and they turned pale at 
a demurrer." (i) 

Some few young men of pre-eminent native ability achieved dis- 
tinction without training even in a clerk's office. Thus Patrick 
Henry was admitted to the Bar in Sept. 1760 at the age of 24, 
after but six weeks' solitary study of Coke upon Littleton and 
the Virginia Statutes, although one of the three examiners, George 
Wythe, refused to sign his license, leaving it to Peyton and John 
Randolph to admit him. The latter said they "perceived him to 
be a young man of genius, very ignorant of law but did not doubt 
he would soon qualify himself." Witt states, however, in his life 
of Henry, (2) that "in spite of his talents he never conquered his 
aversion to systematic study of the law and could rarely see the 
bearing of reported cases", this failing standing often in the way 
of success. 

The second course open to a law student was the familiar one 
of entering the office of some leading member of the Bar, prefer- 
ably one of the few who had good law libraries, and there absorb- 
ing, by study, observation, and occasionally by direct teaching 
from his senior, the principles of the law. 

For the privilege of entering such an office a student was 
obliged to pay a sum of money, usually $100 to $200, sometimes 

1 i ) Discourse on life and CItaracter of Hon. Littleton Waller Taze- 
ivell, by Hugh Blair Grigsby (1860). 

(2) Life of Patrick Henry, by William Wirt. 



1 






LEGAL EDUCATION. 133 

as much as $500, if admission was desired to the office of some 
pre-eminent celebrity. An interesting illustration of the value set 
on these privileges is found in a promissory note (still extant) as 
follows : 

Phila. March 22, 1782. I promise to pay James Wilson Esq. 
or order on demand one hundred guineas, his fee for receiving 
my nephew Bushrod Washington as a student of law in his 
office. G. Washington, (i) 

In the office, the student had access to all his senior's law books 
for study. He pored over the MSS. volumes of forms, and the 
abstracts, commonplace books, and MSS. notes of cases, which 
each lawyer of those days made for himself. (2) He was ex- 
pected to copy out pleadings and other documents for his senior, 
and to draft briefs. In return the lawyer gave to his student 
such advice, information, or instruction as his time or his whim 
permitted. 

As a rule, the lawyer was too busy a man to pay much atten- 
tion to his students ; and the chief advantage gained by them was 
in personal association with the able lawyers against whom he 
tried his cases, and in the general influence which great characters 
have on younger men who come in contact with them. 

Thus even so learned a lawyer as James Wilson was said to 
have been of slight advantage to his students, as an instructor : 

Mr. Wilson devoted little of his time to his students in his 
office (among whom were Judge Washington and Samuel Sit- 
greaves) and rarely entered it except for the purpose of consult- 
ing books. Hence his intercourse with them was rare, distant, 
and reserved. As an instructor he was almost useless to those 
who were under his direction. He would never engage with them 
in professional discussions; to a direct question he gave the 
shortest possible answer and a general request for information 
was always evaded. (3) 

An interesting sidelight on this lack of sympathy in the rela- 
tions between lawyer and student is found in an essay written by 
William Livingston, (4) while a student, in 1745, in the office- 

(1) See Letters and Times of the Tylers, by Leon G. Tyler. 

(2) For interesting description of a student's life, see Life of James 
Sullivan, by T. G. Amory. 

(3) Sanderson's Lives of the Signers. 

(4) Life of William Livingston, by Theodore Sedgwick Jr. (1833). 
This essay appeared in print in Parker's New York Weekly Post Boy 

for Aug. 19, 1745, signed Tyro Philolegis. 



134 HARVARD LAW SCHOOL. 

of the great Scotch lawyer James Alexander, then the leading 
lawyer of New York, an invective against the mode of study- 
ing law as then practised, and against the drudgery to which 
clerks were subjected. 

The following extracts show the general feeling of the 
writer. 

There is perhaps no set of men that bear so ill a character in 
the estimation of the vulgar, as the Gentleman of the Long Robe : 
Whether the disadvantageous idea they commonly entertain of 
their integrity, be founded upon solid reason, is not my design 
to enquire; but if they deserve the imputation of injustice and 
dishonesty, it is in no instance more visible and notorious, than 
in their conduct towards their apprentices. That a young fellow 
should be bound to an attorney for 4, 6 or 7 years, to serve him 
part of the time for the consideration that his master shall in- 
struct in the mystery of the law the remainder of the term ; and 
that notwithstanding this solemn compact (which is binding on 
either side, is reciprocally obligatory) the attorney shall either 
employ him in writing during the whole term of his apprentice- 
ship, or, if he allows him a small portion of the time for reading, 
shall leave him to pore on a book without any instruction to 
smooth and facilitate his progress in his study, or the least ex- 
amination of what proficiency he makes in that perplexed science ; 
is an outrage upon common honesty, a conduct scandalous, 
horrid, base, and infamous to the last degree! 

These gentlemen must either have no manner of concern for 
their clerk's future welfare and prosperity, or must imagine, that 
he will attain to a competent knowledge in the Law, by gazing 
on a number of books, which he has neither time nor opportunity 
to read; or that he is to be metamorphos'd into an attorney by 
virtue of Hocus Pocus. Is it the father's intention, when he 
puts his son to an attorney, and gives a large sum into the 
bargain, that he shall only learn to write a good hand? But 
whoever attentively considers how these apprentices are used, 
and forms a judgment from the treatment they meet with, would 
certainly imagine, that the youth was sent to the lawyer on 
purpose to write for him, because his father could find him no 
employment; and if his master, out of the exuberance of his 
humility, graciously condescends to instruct him, it's only by the 
bye, in order to enable him to be a more profitable servant. 
I averr, that 'tis a monstrous absurdity to suppose, that 
the law is to be learnt by a perpetual copying of precedents. 
These gentlemen may indeed plead custom, and in pleading that, 
they admit my assertions ; ... It does not want any great 
measure of knowledge to see the ridicule of this monstrous prac- 
tice ; but what makes it the more astonishing, is its being practised 
by men of learning and unquestioned honesty: . . . It is 



LEGAL EDUCATION. 135 

therefore an affront to common sense to multiply arguments for 
the proof of a thing which none but a lawyer and a madman will 
pretend to deny. And if no logick can convince them of the in- 
justice of such a practice, I believe no reasonable person would 
blame an apprentice for discharging at them the argumentum 
basilinum, or what the English call Club-law, with full force and 
virtue? This is an argument of mighty energy, and was much in 
vogue in the Protector's time, when a man, unable to convince his 
antagonist by syllogysm, knocked him down. And in no case 
can this coercive way of reasoning more justly be made use of, 
than in the case under consideration, as nothing whatsoever can 
be a greater provocation, or demand a more forcible kind of 
logick. 

As an offset to the above, an interesting view of the more help- 
ful relations between a lawyer and his student is found in John 
Ouincy Adams' diary, in his description of his senior, Theophilus 
Parsons ( i). 

Nov. 27, 1787. It is of great advantage to us to have Mr. 
Parsons in the office. He is in himself a law library, and a pro- 
ficient in every useful branch of service ; but his chief excellency 
is, that no student can be more fond of proposing questions than 
he is of solving them. He is never at a loss, and always gives a 
full and ample account, not only of the subject proposed, but of 
all matters which have any intimate connection with it. I am 
persuaded that the advantage of having such an instructor is very 
great, and I hope I shall not misimprove it as some of his pupils 
have done. 

The best idea of the scanty sources of information, open to a 
student of those days, can be gained by a citation of the studies 
of a few of the prominent men of the time. 

Thus Col. James Otis, father of the famous James Otis Jr., 
who studied law, prior to 1750, at Barnstable, Massachusetts, 
found as the only books obtainable, Coke's Institutes, Brown- 
low's Entries, and Plowden's Commentaries and Reports. (2) 

Rhode Island law students, said Wilkins Updike(3), prior to 
the Revolution, were brought up on Coke upon Littleton, Doctor 
and Student, Bacon's and Sheppard's Grand Abridgment, Croke, 
Vaughan, Salkeld, Hardwick and Strange Reports; and Coivell's 
and Jacob's law dictionaries. "A Lawyer's Library then, like 
Petrarch's, could be transported in his saddle bags". 

(1) See Mass. Hist. Soc. Proc. 2nd Series, Vol. XVI ( 1902). 

(2) Address before the Bristol County Bar, by Abraham Holmes 

(1834). 

(3) Memoirs of the Rhode Island Bar, by Wilkins Updike, (1842). 



136 HARVARD LAW SCHOOL. 

Oliver Ellsworth, of Connecticut, (later Chief Justice of the 
United States Supreme Court) had as his only text books, Bacon's 
Abridgment and Jacobs' Law Dictionary. (i) 

Of William Wirt, of Maryland, who was admitted to the Bar 
of Virginia, in 1792, after a year and five months study of law, 
Kennedy says, "he had travelled along the flinty highway of 
Coke and his whole magazine of intellectual artillery at this 
time comprised no other ammunition than a copy of Blackstone, 
two volumes of Don Quixote and a volume of Tristram 
Shandy, (2} 

The following is the course of study recommended by William 
Smith, one of the early leaders of the Bar of New York, to a 
young friend of John Jay, about 1760. 

But now I bring our student home to the studies of his profes- 
sion of law and I would advise these books in the following 
order. 

First, for the knowledge of the law in General. 

1 The treatise of law in Wood's Institute, on the civil law, or 
in Domat, which are both the same. 

2 Puffendorf de offrcio Hominis. 

General study of the elements of the common law in the fol- 
lowing order. 

Hale's History of the Common Law. 

Fortescue's Practice of the Laws of England. 

Sir Thomas Smith's De Republica Anglorum. 

First Book of Doctor and Student. 

Second part of Bacon's Elements. 

Wood's Institutes of the Common Law. 

Then to fill up and enlarge your ideas you may read Bacon's 
Abridgment of the Law which it is presumed will all be soon 
published. 

In reading the Abridgment, which is contrived so as to read 
pleasantly, I would advise that you constantly refer from the 
Abridgment to Wood, and from Wood to the Abridgment. (3) 

John Adams, at the age of 25, records in his diary a course of 
study which probably exceeds that of any other law student of 
the time, especially noticeable being his study of the civil law, of 
which he writes as early as 1758 : 



(1) Lives and Times of the Chief Justices, by Henry Flanders (1881). 

(2) Life of William Wirt, by John P. Kennedy, (1849). 

(3) Lives of the Chief Justices, by George Van Santvord, (1882). 

It will be noticed how closely this follows the course for study given 
in England by Chief Justice Reeve. 



LEGAL EDUCATION. 137 

Few of my contemporary beginners in the study of the law 
have the resolution to aim at much knowledge in the civil law. 
See me distinguish myself from them by the study of the civil 
law in its native languages. I shall gain the consideration and 
perhaps the favor of Mr. Gridley and Mr. Pratt by this means. 

and in November 1760, he records : 

I have read a multitude of law books mastered but few 
Wood, Coke, two volumes Lillie's Abridgment, two volumes 
Salkeld's Reports, Swinburne, Hawkin's Pleas of the Crown, 
Fortescue, Fitsgibbon. Ten volumes in folio I read at Worcester 
quite through, besides octavos and lesser volumes of all sizes 
that I consulted occasionally without reading in course, as dic- 
tionaries, reporters, entries, and abridgments. During the last 
two years, Justinian's Institutes I have read through in Latin with 
Vinnius' Perpetual Notes. Van Muyden's Tractatio Institutionum 
Justiniani I read through and translated mostly into English 
from the same language. Wood's Institutes of the Civil Law I 
read through. These on Civil Law. On the law of England I 
read Cowell's Institute of the Laws of England, Doctor and 
Student, Finch's Discourse of Law, Male's History and some re- 
porters, Cases in Chancery, Andrews, etc. also a General Treatise 
of Naval Trade and Commerce All this series of reading has 
left but faint impressions and a very imperfect system of law in 
my head. I must form a serious resolution of beginning and 
pressing quite through the plans of my Lords Hale and Reeve. 
Wood's Institutes of Common Law I never read but once and my 
Lord Coke's Commentary on Littleton I never read but once. 
These two authors I must get and read over and over again. 
And I will get them too and break through, as Mr. Gridley ex- 
pressed it, all obstructions. 

Besides I am but a novice in natural law and civil law. There 
are multitudes of excellent authors on natural law that I have 
never read ; and indeed I never read any part of the best authors 
Puffendorf and Grotius. In the civil law there are Hoppius and 
Vinnius, commentators on Justinian, Domat, etc., besides insti- 
tutes of Canon and feudal law that I have read. Much may be 
done in two years I have found already ; and let it be my care 
that at the end of the next two years I be better able to show that 
no time has been lost than I ever have been. 

Resources however, such as Adams could have access to, in 
Boston, were not available for the country practitioner. And the 
office of the average country lawyer, even towards the end of the 
i8th Century, contained little more than Coke on Littleton, 
Comyn's Digest, Bacon's Abridgment, Hale's or Hawkin's Pleas 



138 HARVARD LAW SCHOOL. 

of the Crown, Blackstone, Lillie's Entries, Saunders Reports 
and some brief book on Pleading and on Practice, (i) 

Probably a copy of Blackstone was not to be found in Hamp- 
shire County before the year 1770. They had Hale and Gilbert, 
paid, a short time before the Revolution, Bacon's Abridgment, but 
there was not in the county a copy of Comyn's Abridgment. They 
had Coke and Littleton as well as Rastell, Fitzherbert, Bracton, 
Britton and Fleta. (2) 

said George Bliss in his address to the Hampshire Bar in 1826. 

Partly because of the lack of books, partly because of the un- 
developed state of the law of business and personal relations, a 
student spent most of his time on the subjects of real property and 
pleadings as found in the rigorous pages of Coke on Littleton, 
and often in the still more refractory volumes of Bracton, Britton, 
Fleta and Glanville. 

John Adams says that when, as an applicant for admission to 
the Bar, he sought Gridley's aid : 

I have a few pieces of advice to give you, Mr. Adams, said 
Gridley. One is, to pursue the study of the law, rather than 
the gain of it; pursue the gain of it enough to keep out of it, 
enough to keep out of the briers, but give your main attention to 
the study of it. The next is, not to marry early; for an early 
marriage will obstruct your improvement ; and, in the next place, 
it will involve you in expense. Another thing is, not to keep 
much company, for the application of a man who aims to be a 
lawyer must be incessant; his attention to his books must be 
constant, which is inconsistent with keeping much company. 
In the study of the law, the common law, be sure deserves your 
first and last attention; and he has conquered all the difficulties 
of this law, who is master of the Institutes. You must conquer 
the Institutes. The road of science is much easier now than it 
was when I set out; I began with Coke-Littleton, and broke 
through. (3) 

It was on Coke on Littleton that Chief Justice Jay was brought 
up. (4) Littleton's Tenures (5) were the main study of James 
Iredell, in 1770. 

(1) Life of Charles Marsh of Vermont, by James Barret (1871). 

(2) Address of George Bliss to Hampshire County Bar, Sept. 26, 1826. 

(3) Adams' Life and Letters, Vol. II. 

(4) Lives of the Chief Justices, by Henry Flanders. 

(5) McRee, in his Life of James Iredell, gives the following account of 
his study; and the extracts from his diary show the difficulty with which 
the "Tenures" retained his attention. 

He was a diligent student, he copied Mr. Johnston's arguments and 



LEGAL EDUCATION. 139 

Of Chief Justice Theophilus Parsons, who studied with The- 
ophilus Bradbury, his son writes that William Pinkney (the 
leader of the American Bar of the first decade of the I9th Cen- 
tury) said to him "Do you know one point in which your father 
surpassed all the lawyers of the country? It was in his thor- 
ough study and comprehension of Coke Littleton. I have read 
that book more perhaps than anyone among us now, and I 
know what it can do for a lawyer." (i) 

Coke and Bracton were the chief studies of Thomas Jefferson 
(1762-1767). (2) 

When I was a student of the law after getting through Coke 
Lyttleton whose matter cannot be abridged, I was in the habit of 
abridging and commonplacing what I read meriting it, and of 
course sometimes making my own reflections on the subject. 

Coke Lyttleton was the universal elementary book of law stu- 
dents and a sounder Whig never wrote nor profounder learning 
in the orthodox doctrines of British liberties. Our lawyers were 
then all Whigs. But when his black letter text and uncouth but 
cunning learning got out of fashion, and the honeyed Mansfield- 
ism of Blackstone became the student's book, from that moment, 
that profession (the nursery of our Congress) began to slide into 
Toryism and nearly all the young brood of lawyers are now of 
that line. They suppose themselves indeed to be Whigs because 
they no longer know what whiggism or republicanism means. 

The older American lawyers agreed with Lord Eldon's views, 
who, in advising a young friend in 1800 to read Coke again and 
again, wrote: 

If it be toil and labour to you, and it will be so, think as I do 
when I am climbing up to Swyer or to Westhill, that the world 
will be before you when the toil is over ; for so the law world will 

pleas in interesting cases. He read carefully and attentively the text books, 
referring to the authorities quoted, and collating and digesting kindred 
passages from all the writers within reach ; he attended the courts, re- 
turned to his chamber and wrote out the arguments of his own applicable 
to the cases. ... In his diary Aug. 23, 1770, he writes: "I have not 
done as much as I ought to have done, read a little in Littleton's Ten- 
ures and stopt in the middle of his chapter on Rents, whereas, if I had 
gone through it, it would have been better and more agreeable than losing 
three or four games of billiards." 

"August 24 This morning pretty well employed ; read a good deal in 
Littleton's Tenures, and afterwards a little in the Edinburgh Magazine for 
I7S8. 

August 29 Read a little in Littleton's Tenures, not much though, being 
interrupted." 

(i) Memoirs of Theophilus Parsons, by T. Parsons, Jr. 

Thomas Jefferson as a Lawyer, Green Bag 153, Vol. X. 



HO HARVARD LAW SCHOOL. 

be, if you make yourself complete master of that book. At 
present, lawyers are made good, cheap, by learning law from 
Blackstone and less elegant compilers. Depend upon it, men so 
bred will never be lawyers, (though they may be barristers), 
whatever they call themselves. I read Coke on Littleton through, 
when I was the other day out of the office, and when I was a stu- 
dent 1 abridged it. (i) 

Later i8th Century lawyers, however, though still immersed 
in Coke by their instructors, did not share this profound admira- 
tion. Thus Mr. Justice Story wrote of his entry upon the study 
of law in 1798 as follows: 

I confess my heart sunk within me. . . . Then the student, after 
reading that most elegant of all commentaries, Mr. Justice Black- 
stone's work, was hurried at once into the intricate, crabbed, and 
obsolete learning of Coke on Littleton. . . . You may judge how I 
was surprised and startled on opening works where nothing was 
presented but dry and technical principles, the dark and mys- 
terious elements of the feudal system, the subtle refinements and 
intricacies of the middle ages of the common law, and the re- 
pulsive and almost unintelligible forms of processes and plead- 
ings. . . . Soon after Mr. Sewall's departure to Wash- 
ington I took it (Coke} up, and after trying it day after day with 
very little success I set myself down and wept bitterly. . . . 
I went on and on and began at last to see daylight, ay, and to 
feel that I could comprehend and reason upon the text and the 
comments. When I had completed the reading of this most for- 
midable work, I felt that I breathed a purer air and that I had 
acquired a new power. ... I pressed on to the severe 
study of special pleadings and by repeated perusals of Saunders 
Reports acquired such a decided relish for this branch of my 
profession that it became for several years afterwards my fa- 

(i) Twiss' Life of Lord Eldon. 

Lord Campbell also writes in 1849 in his diary: 

"I have taken to my old favorite Co. Litt. It certainly is very pleasant 
reading. I am more than ever struck by its unmethodical and rambling 
character, but one must admire the author's stupendous familiarity with 
all parts of the law of England ; he is uniformly perspicuous, he gives 
amusing glimpses of history and manners and his etymologies and other 
quaint absurdities are as good for a laugh as Joe Miller or Punch. * * * 
No man can thoroughly understand the law as it is without knowing 
the changes it has undergone, and no man can be acquainted with its 
history without being familiar with the writings of Lord Coke. Nor is 
he by any means so dry and forbidding as is generally supposed. He 
is certainly unmethodical, but he is singularly perspicuous, he fixes the 
attention, his quaintness is often amusing and he excites our admiration 
by the inexhaustible stores of erudition which without any effort he 
seems spontaneously to pour forth. Thus were our genuine lawyers 
trained. Lord Eldon read Coke upon Littleton once, twice and thrice 
and made an abstract of the whole work as a useful exercise." 



LEGAL EDUCATION. 141 

vorite pursuit. ... I also read through that deep and admir- 
able work. . . . Fearne on Contingent Remainders and Ex- 
ecutory Devises and I made a MSS. abstract of all its princi- 
ples, (i) 

And Daniel Webster (2) who studied first in 1801 in the 
office of Thomas W. Thompson at Salisbury, N. H., said : 

I was put to study in the old way, that is, the hardest books 
first, and lost much time. I read Coke-Littleton through without 
understanding a quarter part of it. ... 

A boy of twenty, with no previous knowledge of such subjects, 
cannot understand Coke. It is folly to set him upon such an 
author. There are propositions in Coke so abstract, and distinc- 
tions so nice, and doctrines embracing so many distinctions and 
qualifications, that it required an effort not only of a mature mind, 
but of a mind both strong and mature, to understand him. Why 
disgust and discourage a young man by telling him he must break 
into his profession through such a wall as this? I really often 
despaired. I thought I never could make myself a lawyer and 
was almost going back to the business of school teaching. 

John Quincy Adams records in his diary (3) : 

March, 1788 I this day got through my folio of Lord Coke 
which has been hanging heavily upon me these ten weeks. It 
contains a vast mass of law learning, but heaped up in such 
an incoherent mass that I have derived very little benefit from 
it indeed I think it a very improper book to put into the hands 
of a student just entering upon the acquisition of the profession. 

. . . The addition of Wood's Institutes and more especially 
of Blackstone's Commentaries has been an inestimable advantage 
to the late students in the profession. 

It was the advent of Blackstone which opened the eyes of 
American scholars to the broader field of learning in the law. He 
taught them, for the first time, the continuity, the unity, and the 
reason of the Common Law and just at a time when the need of 
a unified system both in law and politics was beginning to be felt 
in the Colonies. 



(1) In a letter to his son W. W. Story, Feb. 9, 1841, Judge Story says, 
"It reminds me strongly of my own case when escaping from the walls of 
college, I found myself in a lawyer's office, among the dusty rubbish of 
former ages ; for at that time there were few elementary works to smooth 
the passage, and from reading the classical work of Blackstone. I had 
immediately to plunge into the dark page of Coke upon Littleton. I could 
say, with Spelman, that my heart sank within me." 

(2) Autobiography of Daniel Webster (1829). 

(3) See Mass. Hist. Soc. Proc., 2nd Series, Vol. XVI, (1902). 



1 42 HARVARD LAW SCHOOL. 

Up to this time, wrote Blackstone, the student has been "ex- 
pected to sequester himself from the world, and by a tedious, 
lonely process to extract the theory of law from a mass of un- 
digested learning. How little therefore is it to be wondered 
at, that we hear of so frequent miscarriages, that so many gentle- 
men of bright inaugurations grow weary of so unpromising a 
search ; and that so many persons of moderate capacity confuse 
themselves at first setting out and continue ever dark and puz- 
zled during the remainder of their lives."(i) 

The publication of Vol. I of the Commentaries was made in 
England in 1765 and Vol. IV in 1769; and as early as 1771-72 
an American Edition of the full work was published in Phila- 
delphia in four volumes at $2 per volume, 1400 copies being 
ordered in advance. The list of subscribers was headed by four 
governors and three lieutenant governors ; and the first name 
among private citizens was "John Adams, Barrister at law, 
Boston". The booksellers of Boston subscribed for 239 copies, 
of Charleston 89, of Philadelphia 84, of New York 60, of Nor- 
folk, Williamsburgh and Winchester in Virginia 97. In addi- 
tion there had previously been imported into the Colonies at 
least 1000 copies of the English edition, at ten pounds per set. (2) 

Even prior to their publication in book form, Blackstone's 
lectures had been known in America; for in September, 1759, 
Jonathan Sewall wrote to John Adams "Your account of Mr. 
Blackstone's lectures is entirely new to me. I am greatly pleased 
with it"; and Adams records in 1765 a conversation with Mr. 
Gridley on Blackstone. The title page of a book entitled Con- 



1 i ) It was to Mansfield that the credit was due of discovering and 
turning to public usefulness the genius of Blackstone as a jurist. A va- 
cancy occurring in the Professorship of Civil Law at Oxford, Blackstone 
had been promised the appointment by the Duke of Newcastle ; but the 
latter finding him unwilling to bestir himself for the Government in politi- 
cal agitation appointed another man. Mansfield then advised Blackstone 
to settle at Oxford and to read law lectures to such students as chose to 
attend. 

These lectures in 1753 had attracted the attention of Charles Viner who 
had made a fortune from the proceeds of his Abridgment (published 1742 
to 1753). And when Viner died, in 1756, he bequeathed a considerable 
sum for the maintenance of a professor at Oxford at a salary of 200 
pounds who should give a course of sixty lectures per year "On the Law 
of England in the English Language." 

To fill this first professorship of law in any English speaking college 
William Blackstone Esq. Solicitor General to his Majesty was appointed 

in 1758. 

(2) See Preface to Hammond's Blackstone's Commentaries. 



LEGAL EDUCATION. 143 

ductor Generalis, published in 1764 in New Jersey a manual 
for justices and petty officers contains the following 

"To which is added a treatise on the Law of Descent in Fee 
Simple, by William Blackstone Esq., Barrister at Law, Vinerian 
Professor of the Law of England.'^ 1 ) 

The popularity of the Commentaries gave an impetus to the 
importation of other law books; so that, by 1775, Edmund 
Burke said in the House of Commons : (2) 

In no country perhaps in the world is the law so gen- 
eral a study. The profession itself is numerous and power- 
ful ; and in most provinces it takes the lead. The greater num- 
ber of the deputies sent to the Congress were lawyers. But 
all who read, and most do read, endeavour to obtain some smat- 
tering in that science. I have been told by an eminent book- 
seller, that in no branch of his business, after tracts of popu- 
lar devotion, were so many books as those of the law exported 
to the plantations. The colonists have now fallen into the way 
of printing them for their own use. I hear that they have 
sold nearly as many of Blackstone's Commentaries in America 
as in England. General Gage marks out this disposition very 
particularly in a letter on your table. He states that all the 
people in his government are lawyers, or smatterers in law ; and 
that in Boston they have been enabled, by successful chicane, 
wholly to evade many parts of one of your capital penal insti- 
tutions This study renders men acute, inquisi- 
tive, dexterous, prompt in attack, ready in defence, full of re- 
sources. In other countries, the people, more simple, and of a 
less mercurial cast, judge of an ill principle in government only 
by an actual grievance ; here they anticipate the evil, and judge 
of the pressure of the grievance by the badness of the principle. 



(1) James Iredell wrote from Edenton, North Carolina, July 31, 1771, 
to his father in London : 

"Will you be so obliging as to procure Dr. Blackstone's Commentaries 
on the Laws of England for me, and send them by the first opportunity. 
I have indeed read them through by the favor of Mr. Johnston who lent 
them to me ; but it is proper I should read them frequently and with 
great attention. They are books admirably calculated for a young stu- 
dent, and indeed may interest the most learned. The law there is not 
merely considered as a profession but as a science. The principles are 
deduced from their source, and we are not only taught in the clearest 
manner the general rules of law, but the reasons upon which they are 
founded. By this means we can more satisfactorily study, and more 
easily remember them, than when they are only laid down in a dictatorial, 
often an obscure manner. 

Pleasure and instruction go hand in hand." 

See Life and Letters of James Iredell, by Griffith J. McRee (1857). 

(2) Speech on Moving Resolutions for Conciliation with the American 
Colonies, March 22, 1776. 



144 HARVARD LAW SCHOOL. 

They augur misgovernment at a distance; and snuff the approach 
of tyranny in every tainted breeze. 

Whether the change is to be attributed to the influence of 
Blackstone, or to the increased facilities for obtaining books, or 
to the freer ideas brought about by the American Revolution, 
the broadening of the study of the law, after 1780, is a striking 
and remarkable feature in the history of law in this country. 

The young lawyer was now expected to know something of 
the general principles of public law, and to approach jurisprud- 
ence in a spirit of scientific inquiry. He was taught general 
views in addition to particular rules. 

Knowledge of technical details of feudal tenure, of obscure 
customs and bewildering pleadings, was no longer enough to 
qualify the best students. 

A law course of reading prescribed in Judge Parker's office 
in Portsmouth, New Hampshire, and in Charles Chauncey's 
office in New Haven, Conn, for Ezra Stiles, Jr. (Harv. 1778) 
was as follows : ( I ) 

Burlamaqui's Principes de Droit Naturel; Montesquieu, /' Esprit 
des Lois; Lord Kames' History of Law; Blackstone; Wood's 
Maxims; Wood's Institutes; Co. Litt; Bacon's Abr.; Hawkins' 
Pleas of the Crown; Gilbert's Evidence, Devises, and Tenures; 
Law of Bills of Exchange; Molloy De Jure Maritime; Hale's 
Abridgment; Lex Testamentorum; Sullivan's Lectures; Bohun's 
Institutes and Declarations; Boot on Suits at Laiv; Offic. Cler. 
Pac.; Burns' Justice; Dalrymple's Institutions of thv Laws of 
Scotland, etc.; Institutes of Tribonian and part of the Pandects; 
Puffendorf; Poulton's Crim. Law; Salkeld's Rep.; I and 2 Bur- 
row; part of Lord Raymond's, Holt's and Shower's Reports, 
Godolphin's Legacy Orph., 40 volumes. 

A similar course was assigned to John Quincy Adams who 
studied in the office of Theophilus Parsons in 1788, first, Robert- 
son's History of Charles V , Vattel's Law of Nature and Nations, 
Gibbon's Rome and Hume's England; next, Sullivan's Lectures, 
Wright's Tenures, Co. Litt.; Wood's Institutes; Gilbert's Evi- 
dence; Foster's and Hawkins' Pleas of the Croum; Bacon's Pleas 
and Pleadings ; Buller's Nisi Prius; Barrington's Observations on 
the Statutes; The Institutes of Justinian. (2) 



(1) Literary Diary of Ezra Stiles Vol. IT; The Study of Elementary 
Law by S. E. Baldwin Yale Law Jour., Vol. XIII. 

(2) Study of Elementary Law, by S. E. Baldwin, Yale Law Journal, 
Vol XIII ; Proc. Mass. Hist. Soc. Vol. XVI, 2nd Series. 



LEGAL EDUCATION. 145 

A very extensive foundation for a course of legal study is 
described by John Randolph, who wrote in 1795 on the fly leaf 
of a volume of Hume's Treatise of Human Nature "I was 
sent to Philadelphia in Jan., 1790, to study law with the then 
Attorney General of the United States (Edmund Randolph). 
This book was the first he put into my hands, telling me that 
he had planned a system of study and wished me to go through 
a course of metaphysical reading. After I returned the book, 
he gave me Shakespeare to read, then Beattie on Truth, after 
that Kaine's Elements of Criticism and fifthly Gillie's History 
of Greece. What an admirable system of study ! Risum 
teneatis !" 

So too the broader course of study in the latter part of the 
1 8th Century can be seen from Chancellor Kent's description 
of his legal educational) 

When the college (Yale) was broken up and dispersed in 
July 1779 by the British, I retired to a country village and 
finding Blackstone's Commentaries I read the fourth volume. 
Parts of the work struck my taste and the work inspired me 
at the age of sixteen with awe and I fondly determined to be a 
lawyer. In Nov. 1781, I was placed by my father with Mr. 
(now called Judge) Benson who was then attorney general, at 
Poughkeepsie. There I entered on law and was the most modest, 
steady, industrious student that such place ever saw. I read the 
following winter, Grotius and Puffendorff in large folios and 
made copious extracts. My fellow students who were gay and gal- 
lant thought me very odd and dull in my taste ; but out of five of 
them four died in middle life drunkards ... In 1782, I 
read Smollett's History of England, and procured at a farmer's 
house where I boarded Rapin's History (a large folio) and read it 
through, and I found during the course of the last summer among 
my papers my MSS. abridgment of Rapin's Dissertations on the 
Laws and Customs of the Anglo Saxons. I abridged Hale's His- 
tory of the Common Law and the old books of practice and read 
parts of Blackstone again and again. The same year I procured 
Hume's History and his profound reflections and admirable elo- 
quence struck most deeply on my youthful mind. I extracted 
the most admired part, made several volumes of MSS. 

Horace Binney, who studied in the office of Jared Ingersoll in 
Philadelphia in 1799, thus described his legal course: (2) 

(1) Life of James Kent, by William Kent (1898). See letter to Thomas 
Washington of Tennessee, written October 6, 1828. 

(2) Life of Horace Binney, by Charles C. Binney (1903). 
10 



i 4 6 HARVARD LAW SCHOOL. 

A methodical study of the general system of law and of its 
grounds and reasons, beginning with the fundamental law of 
estates and tenures, and pursuing the derivative branches in 
logical succession, and the collateral subjects in due order, by 
which the student acquires a knowledge of principles that rule in 
all departments of the science and learns to feel as much as 
to know what is in harmony with the system and what is not. 
. The Profession knows this by its fruits to be the most 
effectual way of making a great lawyer. 

Judge James M. Wayne of Georgia summarized his twenty 
months in Judge Channing's office in New Haven, about 1808, 
as follows : ( i ) 

First he gave to me several lectures upon the ethics of the 
profession, illustrating them by narratives and anecdotes from 
the lives of eminent lawyers. These were not conversations, but 
precisely written chapters upon the practice of the profession in 
the different relations of law and client, lawyer with lawyer, 
and lawyer with the court and jury, in which were traced their 
obligations to each other with exactness and truth. I was then 
lectured for 3 or 4 months upon the Roman Law. First, his- 
torically as to its source and its reception in modern Europe, 
and then in its sub-division concerning persons, things, rights, 
the modes of prosecuting them, and in all of those analogies in 
relation to contracts which exist between it and the English com- 
mon law. In connection with this course I was carried through 
the history of the English common law, before I was permitted 
to take up any of the works ordinarily first used in getting a 
knowledge of the law. Hale's History of the Common Law was 
his text, and Edward I his hero. Every Statute of that prince's 
reign and of each succeeding reign in any way bearing upon the 
improvement of the law, I was made to know something of, in 
contrast with the antecedent defective condition of English law. 

A more old fashioned course of studies was pursued by Chief 
Justice Roger B. Taney who thus describes his legal education in 
his Memoirs : 

In the spring of 1796 I read law in the office of Jeremiah 
Thurly Chase at Annapolis, Judge of General Court. 

From the character of the judges of the General Court, of 
the bar who attended it, and the business transacted in it, Annapo- 
lis was considered the place of all others in the State where a 
man should study law, if he expected to attain eminence in his 
profession. 

(i) Biographical Sketches of Eminent American Lazvyers Now Liv- 
ing, by John Livingston, (1852). 



LEGAL EDUCATION. 147 

My reading in the office of a judge, instead of a practising 
lawyer, had some advantages ; but upon the whole was I think 
a disadvantage to me. It is true, it gave me more time for unin- 
terrupted study, but it gave me no instruction in the ordinary- 
routine of practice, nor any information as to the forms and 
manner of pleading. In that day, strict and nice techni- 
cal pleading was the pride of the bar and I might almost say of the 
court. And every disputed suit was a trial of skill in pleading 
between the counsel, and a victory achieved in that mode was 
much more valued than one obtained on the merits of the case 
. . . .Xor was it so easy in that day for an inexperienced young 
lawyer to satisfy himself upon a question of special pleading. 
Chitty had not made his appearance, and you were obliged to 
look for the rule in Comyn's Digest or Bacon's Abridgment or 
Viner's Abridgment and the cases to which they referred; and 
I have sometimes gone back to Lilly's Entries and Doctrina 
Placitandi in searching for a precedent. . . . \Ye had no moot 
court. My preceptor, Mr. Chase, did not encourage them, and in 
this he agreed, I believe, with the leaders of the Bar in Annapolis 
in whose offices there were students. He thought that discus- 
sions of law questions by students was apt to give them the 
habit of speaking upon questions which they did not understand 
or of which they had but an imperfect and superficial knowledge 
that its tendency therefore was to accustom them to loose argu- 
ments and to lay down principles without proper qualifications. 
He advised me to attend regularly the sittings of the General 
Court, to observe how the eminent men at that bar examined the 
witnesses and brought out their cases, and raised and argued the 
questions of law, and afterwards to write a report of it for my 
own use. . . . All the lawyers of Maryland who had risen to emi- 
nence and leadership were trained in the manner described and 
advised by Mr. Chase. 

"Taney studied law," says his biographer, <; in the old way. 
beginning with the fundamental law of estates and tenures, and 
pursuing the derivative branches in logical succession, and the 
collateral subjects in due order, considering the grounds and rea- 
sons of everything as he proceeded. Pleading and evidence and 
the rules of practice, he had thoroughly mastered. The old law 
treatises like Coke upon Littleton had not been superseded by 
Indexes, Digests and Treatises, which supply thoughts without 
cultivating the power of thinking. The Entries, Brooke, and Coke, 
and Lezins, and Rastall had not yet made their exit." (i) 

A final and perhaps the best illustration of the average legal 
education is William Plumer, Jr.'s. account of his father, \Vill- 

(i) Memoir of Roger Brooke Taney by Samuel Tyler ( 1872 . 



I 4 8 HARVARD LAW SCHOOL. 

iam Plumer, Sr., who was a contemporary of Jeremiah Mason, 
Jeremiah Smith, Daniel Webster, and Ichabod Bartlett in New 
Hampshire, and who studied law in 1784, in the office of Joshua 
Atherton. 

Atherton gave him Coke upon Littleton, as his first initia- 
tion into the mysteries of the law; and it is not strange that 
the ardor of the young aspirant was somewhat cooled by this 
selection of masters, so quaint, austere and forbidding. After 
digging for some three or four weeks, in the rugged soil of 
the feudal tenures, and beginning, as he thought, to get some 
glimpses of its hidden treasures, he was told by his instructor 
that he must suspend his legal studies and commence with the 
Latin Grammar. He must read Virgil and Cicero before he 
could understand Coke and Littleton. This was a new and, to 
him, most unwelcome labor. He, however, laid aside his law, 
and took up Lilly's Latin Grammar, probably the first grammar 
he had ever seen, certainly the first he had ever attempted to 
study. 

In 1785 his new instructor, John Prentice, a graduate of Har- 
vard College, though probably not a well-read lawyer, possessed 
a respectable standing at the bar ; and, like Atherton, was 
afterwards Attorney General. His law library consisted at this 
time of Blackstone's Commentaries; Wood's Institutes of the 
Laws of England; Hawkins' Pleas of the Crown; Jacob's Law 
Dictionary; Salkeld; Raymond and Strange's Reports; the 
New Hampshire Statutes, and a manuscript volume of Pleas and 
Declarations. . . . He read the whole of Blackstone rapidly 
through, in the first instance, to acquire, in this way, a general 
idea of its contents ; and then went over it, more carefully, a 
second time, with a view to its more thorough comprehension. 
He devoted at least ten hours a day to this study, though he 
seldom read more than forty or fifty pages in that time. But 
these were carefully studied, or, if not fully understood, at least, 
examined with his best care and attention. His instructor was not 
much inclined, nor indeed always able, to answer the questions 
which he asked ; and the few books within his reach often failed 
to furnish the desired information. Under these circumstances 
his practice was, after reading a portion of Blackstone, to trace 
the subject through other books; and then, taking a walk in 
some retired place, to review in his mind the substance of what 
he had read, examining the relations of one part with another, 
and of the whole with what he had learned before, till he felt 
himself master of the lesson, and prepared to go farther. . 

On the important subject of Pleas and Pleading, Prentice had 
no books, except a manuscript volume of forms, said to have 
been collected by Theophilus Parsons. This the student copied, 
and added to it in the course of his practice, such other pleas and 



LEGAL EDUCATION. 149 

declarations as he thought worthy of preservation, whether drawn 
by himself, or derived from other sources. He, at the same 
time, took copious notes of his reading, and formed abstracts 
and digests of the law under separate heads, thus reducing his 
knowledge to a regular system. 

Daniel Webster's own account of his course of study in the 
office of Christopher Gore, in 1804, is a typical example of the 
course followed in the early years of the iQth Century. 

Before coming to Boston he had studied about two years in 
Salisbury, N. H. the first works which he read being Vattel, 
Burlamaqui and Montesquieu on the Law of Nations ; then Black- 
stone and Coke; and the histories of Hume and Robertson; and 
"happening to take up Espinasse's Nisi Prius" , he wrote, "I found 
I could understand it and arguing that the object of reading was 
to understand what was written, I laid down the venerable Coke 
et alios similes reverendos and kept company for a time with Mr 
Espinasse and others, the most plain, easy and intelligent writers." 

Mr. Gore had just then returned from England, and renewed 
the practice of the law. He had rooms in Scollay's Building, 
and, as yet, had no clerk. A young man, as little known to 
Gore as myself, undertook to introduce me to him. In logic, this 
would have been bad. Ignotum per ignotum. Nevertheless, it 
succeeded here. We ventured into Mr. Gore's rooms, and my 
name was pronounced. I was shockingly embarrassed, but Mr. 
Gore's habitual courtesy of manner gave me courage to speak. 

. . . He talked to me pleasantly for a quarter of an hour ; 
and, when I rose to depart, he said: "My young friend, you 
look as though you might be trusted. You say you came to 
study, and not to waste time. I will take you at your word. 
You may as well hang up your hat at once; go into the other 
room; take your book, and sit down to reading it, and write at 
your convenience to New Hampshire for your letters." . . . 
It was a situation which offered to me the means of studying 
books and men and things. It was on the 2Oth day of July, 1804, 
that I first made myself known to Mr. Gore; and, although I 
remained in his office only till March following, and that with 
considerable intervening absences, I made, as I think, some 
respectable progress. 

In August the Supreme Court sat. I attended it constantly, 
and reported every one of its decisions. I did the same in the 
Circuit Court of the United States. I kept a little journal at 
that time, which still survives. It contains little besides a list of 
books read. 

In addition to books on the common and municipal law, I 



150 HARVARD LAW SCHOOL. 

find I read Vattel for the third time in my life, as is stated in the 
journal, Ward's Law of Nations, Lord Bacon's Elements, 
PuffendorfFs Latin History of England, Gifford's Juvenal, Bos- 
well's Tour to the Hebrides, Moore's Travels, and many other 
miscellaneous things. 

But my main study was the common law, and especially the 
parts of it which relate to special pleading. Whatever was in 
Viner, Bacon, and other books then usually studied on that part of 
the science, I paid my respects to. Among other things I went 
through Sounders' Reports, the old folio edition, and abstracted, 
and put into English, out of Latin and Norman-French, the plead- 
ings in all his Reports. It was an edifying work. From that day 
to this the forms and language of special pleas have been quite 
familiar with me. I believe I have my little abstract yet. 

When all is said, however, as to the meagreness of a lawyer's 
education, one fact must be strongly emphasized that this very 
meagreness was a source of strength. Multum in parvo was par- 
ticularly applicable to the training for the Bar of that era. 

There was truth in the reply of a great lawyer, when asked 
how the lawyers who formed the United States Constitution had 
such a mastery of legal principles, "Why they had so few 
books"(i). "Many other students," wrote Webster, "read more 
than I did, but so much as I read, I made my own." 

And Chancellor Kent's remark "that he owed his reputation to 
the fact that, when studying law during the war, he had but one 
book, Blackstone's Commentaries, but that one book he mas- 
tered," (2) sums up very concisely the cause of the greatness of 
many an early American jurist. 



(1) See How Successful Lawyers were Educated, by G. C. Macdonald 
(1896). 

Sir Edward Sugden in England once said "I resolved, when beginning to 
read law, to make everything I acquired perfectly my own, and never to go 
to a second thing until I had entirely accomplished the first. Many of my 
competitors read as much in a day as I read in a week; but at the end of 
the twelve months, my knowledge was as fresh as on the day it was ac- 
quired, while theirs had glided away from their recollections." 

(2) See Magazine of American History, Vol. XIII (1885). 



CHAPTER VII. 
EARLY AMERICAN BARRISTERS, AND BAR ASSOCIATIONS. 

The local law office does not account, however, for all the edu- 
cated American lawyers of the i8th Century. 

A far greater number than is generally known, received their 
legal education in London in the Inns of Court; and the influ- 
ence, on the American Bar, of these English-bred lawyers, espe- 
cially in the more southerly Colonies, was most potent. The 
training which they received in the Inns, in exclusively English 
Statutory and Common Law, based as it was on historical prec- 
edent and customary law, the habits which they formed there of 
solving all legal questions by the standards of English liberties 
and of rights of the English subject, proved of immense value 
to them when they became later (as so many did become) leaders 
of the American Revolution. 

It has been stated that 115 Americans were admitted to the 
Inns, from 1760 to the close of the Revolution ( i) ; from South 
Carolina 47, from Virginia 21, from Maryland 16, from Pennsyl- 
vania 11, from New York 5, and from each of the other Colon- 
onies I or 2. And probably twenty-five or fifty American-born 
lawyers had been educated in England prior to 1760. (2) 

Among the more distinguished may be named John Rutledge, 
Charles Cotes worth Pinckney, Thomas Hey ward, Thomas Lynch, 
John Julian Pringle, and John Laurens, from South Carolina; 
John Randolph, Richard Henry Lee and Arthur Lee, from Vir- 
ginia ; Charles Carroll, from Maryland ; Joseph Read, from 
New Jersey ; and Thomas McKean, Edward Tilghman and 
William Tilghman, Jared Ingersoll, Benjamin Chew, William 
Rawle, and John Dickinson, from Pennsylvania. 

The breadth of education to be sought in England may be gath- 
ered from the following letter written, from Charleston, July 30, 
1769, by John Rutledge, to his brother in London: 



(1) Life and Times of John Dickinson, by Charles J. Stille (1891). 

(2) See Chapters I, III and IV supra. 



152 HARVARD LAW SCHOOL. 

The very first thing with which you should be thoroughly 
acquainted is the writing shorthand. ... Be constant in 
attending the sittings in Chancery out of terms, and when 
there are no sittings at Nisi Prius in London or Westmins- 
ter; for I would prefer attending the King's Bench and Sit- 
tings of the Chief Justice of that court at Nisi Prius when 
they are held. And remember what I hinted to you of at- 
tending alternately in the different courts by agreement be- 
tween you and some of your intimate fellow students, and 
then of comparing and exchanging notes every evening. 
. . . But you must exert yourself to the utmost in being 
able by some means or other to attend the House of Com- 
mons constantly ... I would not have this make you a 
dabbler in politics. What I intend by it is that you may have 
opportunities of seeing and hearing the best speakers, and of 
acquiring a good manner and proper address. ... I believe 
Sheridan is the only lecturer in England upon oratory, and I 
think it would be advisable to attend him and mark well his 
observations. . . . And now in regard to particular law 
books Coke's Institutes seem to be almost the foundation of our 
law. These you must read over and over with the greatest atten- 
tion, and not quit him until you understand him thoroughly and 
have made your own everything in him which is worth taking 
out. A good deal of his law is now obsolete and altered by acts 
of Parliament ; however, it is necessary to know what the law 
was before so altered. Blackstone I think useful.(i) The 
reports are too tedious to be all read through ; at least whilst you 
are in England, I would give the preference to the most modern. 

. . I look upon it that if you go through all the cases 
reported since the Revolution, when the Constitution seems to 
have been re-established upon its true and proper principles, and 
since which time by the alteration of the Judges' commission and 
their increasing independence, to what it is at this day, the law has 
been in its greatest perfection, and not encroaching either upon 
the people's liberties or the prerogative; I say, if you do this, 
you will have a collection of the very best cases. ... I 
would read every case reported from that time to the present. 
Distinguish between your reading of law and equity, and don't 
confound the two matters. . . . They are kept very distinct 
in the courts of England, though here blended together very often 
and very ridicuously. ... I would have you also read the 
statute laws throughout. . . . Vast numbers of them you will 
find of no manner of use, except indeed as matter of history ; but 
this thing I think in the main will be of vast service to you . 

Stock yourself with a good collection of law maxims both 
Latin and English they are of great use . . . Make your 

(i) It is to be noted that this letter was written before Blackstone had 
been republished in the Colonies. 



AMERICAN BARRISTERS. 153 

self thoroughly acquainted with all the terms of the law. . . . 
The little book called Termes de la Ley, will help you. Doctor 
and Student is a good book, though a little one, and good author- 
ity. Bacon you know is my favorite, and where authors seem 
to differ I think he will best reconcile them. Be well acquainted 
with Crown Law, Hale's, Hawkin's and Judge Foster's, and what 
other Crown Law books there are, read carefully. 

The facilities for legal study supplied by the Inns of Court 
were, however, the least of the opportunities open to young 
American barristers in London at this time. For these years, 
1750 to 1775, formed a period of remarkable brilliance in English 
history. Students of law were not only studying at the Inns side 
by side with the future Chief Justices, Kenyon and Ellenbor- 
ough, and the future Chancellors, Thurlow, Eldon and Erskine; 
but they were also listening to the luminous judgments of Lord 
Mansfield on King's Bench, to the commanding eloquence of Pitt, 
(Lord Chatham) and the oratory of Charles Pratt, (Lord Cam- 
den) ; they were elbowing, in the Inns themselves, the burly 
frame of Samuel Johnson the autocrat of literature; and they 
were witnessing David Garrick's "powers of acting vast and 
unconfined." ( I ) 

In forming an idea of the colonial lawyer's education, one 
further factor must be borne in mind, the remarkable extent to 
which 1 8th Century lawyers, especially those of New England, 
Virginia, and South Carolina were college-bred men. Practically 
all the early lawyers in Massachusetts were Harvard graduates; 
and of the lawyers admitted to practice in Boston at the Suffolk 
Bar, in later years, from 1780 to 1817, 139 were Harvard grad- 
uates ; 7 were from Brown, 6 from Dartmouth, i from Will- 
iams, 3 non-graduates. (2) 

(1) Of Jared Ingersoll who was in the Middle Temple in 1774, his 
son Charles J. Ingersoll wrote, that "Mansfield, Blackstone, Chatham and 
Garrick and other luminaries of that period were objects of his constant 
attention, and of his correspondence, and ever after among the pleasures 
of his memory." 

See Life of Charles Jared Ingersoll, by William M. Meigs (1897). 

(2) Of the lawyers, other than the Judges and Attorney Generals, 
mentioned by Washburn in his Judicial History of Massachusetts, 17 
were Harvard graduates, 4 English bred lawyers, 4 non-graduates and I 
from Yale. 

Of the members of the Worcester Bar, in Massachusetts, admitted prior 
to 1800, 45 graduated from Harvard, 5 from Brown, 3 from Dartmouth, 2 
from Yale, I non-graduate. Of those admitted between 1800 and 1817, 28 
graduated from Harvard, u from Brown, 12 from Dartmouth, 3 each 
from Yale and Williams, 2 from Union and 6 non-graduates. 

See Address before the Worcester Bar, by Joseph Willard, Oct. 2, 1829. 



T54 HARVARD LAW SCHOOL. 

In New Hampshire, in 1805, of the 106 members of the Bar, 
77 were college graduates from Harvard 35, Dartmouth 34, Yale 
6, Brown 2. 

In Maine, in 1770, of the six trained lawyers, four were Har- 
vard graduates. 

In Connecticut, practically all the lawyers of distinction were 
Yale graduates. 

In New Jersey, the prominent lawyers were almost exclusively 
college men, either from Yale, like David Ogden, or from Prince- 
ton, like Richard Stockton. 

In Pennsylvania as already noted, a large proportion of the 
Bar was educated in England or the College of Philadelphia and 
the University of Pennsylvania. 

The records of William and Mary College and of Princeton 
contained the names of many of Virginia's prominent lawyers. 

In South Carolina, almost all of distinction at the Bar after 
the Revolution graduated from Princeton, Yale, or the College 
of South Carolina. 

New York alone seems the exception in the matter of liberal 
training for her Bar ; for in the early i8th Century, men of edu- 
cation were rare in that Province. There were no college gradu- 
ates on the Bench, except James Delancey, and none at the 
Bar, except William Smith. It seems that commerce engrossed 
the attention of the principal families, and their sons were sent 
from the writing school to the counting house, and thence to the 
West Indies. ( i ) 

In 1741, when William Livingston graduated from Yale, there 
were but six other lawyers in the Province who were college 
graduates, three of whom were his own brothers. 

And as the historian William Smith, Jr. (born in 1728) writes 
of his own time: 

To the disgrace of our first planters, who beyond conparison sur- 
passed their eastern neighbors in opulence, Mr. James Delancy, 
a graduate of the University of Cambridge, and Mr. Smith were 
for many years the only academics in the Province except such 
as were in holy orders and, so late as 1746, the author did not 
recall above thirteen more. 

In the later part of the i8th Century, however, New York 
recruited her Bar very largely from graduates of King's College 
(Columbia). 



(i) Life of William Livingston, by Theodore Sedgwick Jr. (1833). 



BAR ASSOCIATIONS. 155 

THE BAR ASSOCIATIONS. 

After 1770, as the course of legal study became liberalized, and 
the Bar became more compact in its organization, and assured of 
its power, it gradually established very rigid rules, fixing require- 
ments for office study by students desiring admission as lawyers. 
These rules paved the way for the establishment of regular law 
schools. They also tended to constitute lawyers as more and 
more of an educated guild. 

Nothing gives a better view of the educational condition of the 
law student at the end of the i8th Century than the Bar Book 
Suffolk County 1770, containing the records of its proceedings up 
to 1805. ( i) 

Mention has been made (2), of the rule, first adopted by the 
Essex Bar in 1768, and later generally by other Massachusetts 
County Bars that: 

It is agreed that we will not take any young gentleman to 
study with us, without previously having the consent of the Bar 
of this County; that we will not recommend any persons to be 
admitted to the Inferior Court, as attorneys, who have not 
studied with some barrister three years at least, nor as attorneys 
to the Superior Court, who have not studied as aforesaid, and 
been admitted at the Inferior Court, two years at least; nor 
recommend them as barristers till they have been through the 
preceding degrees, and been attorneys at the Superior Court two 
years at the least, except those gentlemen who are already 
admitted in this County as attorneys at the Superior and Inferior 
Courts, and that these must be subject to this rule so far as is 
yet to come. 

In 1800, the term of years was extended so that "students of 
college out of the State be not admissible to the Bar until they 
shall have studied one year longer than those educated at Har- 
vard University;" and "gentlemen admitted to the Bar of other 
States who have practised thereat less than four years must have 
a term of study within this county of at least one year." 

In 1771, the Suffolk Bar required that "consent of the Bar 
shall not be given to any young gentleman who has not had an 
education at college, or a liberal education equivalent in the 
judgment of the Bar." This at once established a very high 

(1) See Mass. Hist. Soc. Proc., (1882), and Historical Sketch, by 
George Dexter. 

(2) Chapter ITT, supra. 



156 HARVARD LAW SCHOOL. 

educational standard for lawyers. In 1784, the standard was 
still further raised, by the provision, that any gentleman pro- 
posed, who had not had a college education, should undergo an 
examination by a committee of the Bar, previous to admission 
as a student. The examination was apparently thorough, for, in 
August, 1784, it appears that: 

The report of the committee on the examination of Messrs. 
Gardiner and Hill was considered; and it appearing to the gen- 
tlemen present that, although those gentlemen were well versed 
in the Latin and English classics, yet that a course of study in 
the mathematics, in ethics, logic, and metaphysics was necessary 
previous to their admission as students of law; therefore Voted 
unanimously, That such admission be suspended. 

also, in 1793: 

The committee appointed for the examination of Mr. Joseph 
Rowe report that he received an academical education in the 
province of Canada ; after which, at about seventeen years of 
age, he entered the office of the attorney-general for that pro- 
vince as a clerk and student of the law ; that he diligently attended 
to the business of that office and a suitable course of study the 
term of two years; all which the committee conceive is equal 
to a collegiate education in this State. That he has resided 
more than three years in Boston as a clerk in the office of Mr. 
Tudor. The committee, having considered the qualifications of 
Mr. Rowe, are of opinion that he may be duly admitted to the 
Bar. 

and in 1798: 

The committee of Suffolk Bar, appointed to examine and 
ascertain the literary acquirements of Mr. Holder Slocum, Jr., 
now a student with Judge Minot, have attended that service, and 
report that they find Mr. Slocum has so far attended to the 
Latin language that a moderate degree of attention and practice 
will probably enable him to render it sufficiently familiar for the 
purposes of his intended profession. He has paid no attention 
to the Greek, and has not been sufficiently instructed in the 
opinion of your committee, in logic, metaphysics, and mathemat- 
ics. He has read some approved writers in history, and has 
attended considerably to the French language. 

It is the opinion of the committee that on his remaining in an 
office three years from the present time, with an attention for 
part of the time, under the direction of his instructor, to history 
and metaphysics, and occasionally to the Latin language, it will 
be proper, at the expiration of that period, if he continues the 



BAR ASSOCIATIONS. 157 

assiduity and attention which he has hitherto manifested, to 
allow of his admission to the Bar. 

and, Jan. 18, 1800, a student from the Litchfield Law School was 
refused : 

The committee of Suffolk Bar, appointed on the application of 
Mr. Samuel Hawkins for admission to the bar in this county 
report, that in September last the said Hawkins was admitted 
as an attorney and counsellor at law at the Court of Common 
Pleas in the county of Litchfield, in Connecticut, and in October 
last he was admitted an attorney and counsellor at the Court of 
Common Pleas in the county of Dutchess, in the State of New 
York, which admissions appear to be duly certified. He also 
produces certificates of having studied one year with Tappan 
Reeve, Esq., in Connecticut, and two years with Jno. , 
Esq., of Troy, in the State of New York. He also states that 
he studied one year with Mr. Ogden, of which he has no cer- 
tificate with him. He had not a college education, but studied 
with a private tutor previous to his living with Mr. Ogden. Mr. 
Hawkins is a native of the State of New York. The committee 
are of opinion, under the circumstances above stated (that he) 
is not now admissible to the Bar of this county. 

Often, however, the rules were enforced liberally, owing to 
special circumstances. Thus, on July 21, 1778, it was voted that 
Mr. Christopher Gore (later Governor of Massachusetts and a 
noted lawyer) "be considered as having studied the law accord- 
ing to the rules of the Bar since the month of July 1776, and 
that he be entitled to the privileges of such a student." 

So too, on December 3, 1779: 

Upon motion made by Mr. Tudor, that Mr. Fisher Ames might 
be considered as a student with him from April, 1778, although 
he had during that time pursued his studies at Dedham, after 
consideration and debate, Voted, That Mr. Ames be considered 
as a law student from the first day of January, 1779, only (this 
indulgence allowed from some particular circumstances in his 
favor), and that at the expiration of three years from that day, 
he continuing in Mr. Tudor's office for the future, he be recom- 
mended to be sworn only on condition that he submit to an 
examination by the Bar, particularly in the practical business of 
the profession. 

In 1782, John Adams was allowed by vote to take into his office, 
Jonathan Williams, as a clerk, "Mr. Williams having a fair moral 
character and a liberal education at Harvard College;" Mr. 



158 HARVARD LAW SCHOOL. 

Adams also took another clerk having "a fair character," Mr. 
Edward Hill. 

It is interesting to note that the legal reputation of the Suffolk 
Bar was so high at this time that there were many applications 
from Southern law students men who in pre-Revolutionary days 
would have gone to England to study in the Inns of the Inner 
or Middle Temple. 

Thus, in October 1783, it was voted: 

On motion of Mr. Hichborn, that Mr. Richard Brook Roberts 
be admitted as a student in his office with a deduction of one 
year from the usual term required by the rules for such stu- 
dents previous to their recommendation for the oath, Voted, 
That Mr. Roberts be admitted accordingly with the proposed 
allowance, provided he produces a certificate from a gentleman 
of the profession in Carolina that he has read law under such 
gentleman's direction for one year at least. 

And, in July 1784: 

On motion of Mr. Gardiner, to have his son, John Gardiner, 
admitted into his office as a student of law ; and on motion from 
Mr. Gore to have the liberty of taking into his office Mr. William 
Hill (a young gentleman from North Carolina), as a student of 
law, it appearing to the Bar that neither of these young gentle- 
men had received a college education, Voted unanimously, That 
a committee be appointed to examine the said young gentlemen 
with respect to their literary qualifications, and to report their 
opinion thereon to the Bar. 

And in April 1781, it was "unanimously assented to that Mr. 
William Hunter Torrens of Charlestown, South Carolina, be con- 
sidered as a law student in Mr. Lowell's office from Jan. i, 
1781". On August 21, 1787, there is the record that Mr. Isaac 
Parker (afterwards the first Royall Professor of Law at Har- 
vard College, and Chief Justice of Massachusetts) "be considered 
as a student in Mr. William Tudor 's office from August i, 1787" ; 
and, July 3, 1790, Mr. Tudor received consent to take into his 
office as a student, Mr. Josiah Quincy ('later President of Har- 
vard College). 

In 1780, it was voted by the Suffolk Bar, that "no gentleman 
take a student into his office for a less consideration than one 
hundred pounds sterling," and in 1783, that "no gentleman 
should in the future have more than three students in his office." 



BAR ASSOCIATIONS. 159 

Of the standard of legal etiquette and morality, the vote of 
March 20, 1784, is significant: 

Voted unanimously that no gentleman of the Bar ought to go 
out of his office to put himself in the way of applications for 
drawing of writs nor to employ any other persons to do busi- 
rress for him out of his office. 

Other States had similar restrictive provisions as to admission 
to practice, sometimes formulated by Bar Associations, and some- 
times prescribed by rules of Court or by statute. Thus, in New 
Hampshire, a State Bar Association, as early as 1788, and later 
in 1805, adopted elaborate General Regulations for the Gentle- 
men of the Bar, providing that: 

In case a candidate for admission as a student in an office has not 
had a degree in the arts he shall, excepting a knowledge of the 
Greek language, be duly qualified to be admitted to the first class 
of students of Dartmouth College. 

College graduates were required to study in an office three years ; 
non-graduates, five years. No member of the Bar could receive 
more than three students in his office; nor could he receive any 
student without the consent of the County Bar. No member 
of the Bar was allowed to receive less than $250 as a tuition 
fee for a student. No lawyer was to be admitted to the Bar of 
the Superior Court, until after two years practice in the Court of 
Common Pleas. (i) 

In Vermont, by statute of 1787, and by Regulations of the Bar, 
the same conditions prevailed. 

In Rhode Island, two years study for college graduates, and 
three years for non-graduates, were prescribed; and a candidate 
could not be proposed to the court until he had obtained the 
approbation and consent of his County Bar. 

The same rule prevailed in Connecticut, as early as 1795, either 
by rule or custom, and after 1807 by rule of the Supreme 
Court. 

In New Jersey, a lawyer had to be recommended by the Justices 
of the Supreme Court to the Governor for a license to practise, 
and to receive such recommendation, he must serve as a clerk 



(i) Rules of the Court, by Joseph B. Walker, Southern New Hamp- 
shire Bar Assn. Proc., Vol. IV. See also Proceedings of Grafton and Coos 
County Bar Assn. (1891). 



160 HARVARD LAW SCHOOL. 

three years if a college graduate, four years if a non-graduate. 
He must also pass an examination before a committee of three 
out of the twelve Serjeants. 

In New York, a Bar Association had existed from about 1745 
to 17/0; but little is known of it, and its records are not extant. 
In the middle of the i8th Century, the members of the Bar, to 
prevent inroads upon their practice, made an agreement not to 
receive into their offices, as clerks, any young men who intended 
to pursue the law as a profession. This rule did not long pre- 
vail ; for it was found that it would tend to cause young men to 
leave the Colony to study as for instance, John Jay, whose 
father had decided to send him to England, but changed his mind 
when the Bar revoked its rule, and placed him in the office 
of Benjamin Kissam. In 1/99, the Supreme Court of New 
York adopted rules, requiring a period of seven years study 
in the office of a practising attorney, before admission to prac- 
tise; but a period not exceeding four years spent on classical 
studies might be credited on the seven years. ( i ) 

In Maryland, three years' study under inspection of some 
practising attorney or judge was required, and also an examina- 
tion by two gentlemen of the Bar. 

In Delaware, three years' study was prescribed. 

In Pennsylvania, by rule of the Supreme Court in 1788, the 
requirements were, four years' study as a clerk and one year's 
practice in the Court of Common Pleas, or three years' clerk- 
ship and two years' practice and examination by two attorneys; 
or two years' clerkship after 21 years of age and two years' prac- 
tice, and examination. 

In Virginia, only one year's study was required. 

In North Carolina and South Carolina, no particular time was 
prescribed. 

In Massachusetts, New York, and New Jersey, the old distinc- 
tion between attorneys and counsellors existed. In the other 
States, there were no such separate classes of lawyers ; but, in all 
of them, two year' practice before the inferior court was pre- 
scribed, before admission was granted to practice in the higher 
court. 

In two States, law clubs had existed for the promotion of 
social intercourse in the profession. 

(i) For complete account, see Admission to the Bar in New York, Yale 
Law Journal, Vol. XVI. (1906). 



BAR ASSOCIATIONS. 161 

Thus, in Massachusetts, "The Sodality" was formed in 1/65, 
with Otis. Gridley, Quincy, and Adams as its leading spirits, of 
which Otis said : 

Let us form our style upon the ancient and best English 
authorities. I hope, I expect to see at the Bar, in consequence of 
this Sodality, a purity, an eloquence, and a spirit surpassing any- 
thing that has ever appeared in America. 

In New York, in 1770. "The Moot" was founded, as a club 
"to encourage a more profound and ample study of the civil 
law. historical and political jurisprudence, and the law of 
nature". Its most active member was \Yilliam Livingston, and the 
"father of the bar." Samuel Jones. Other veterans Kissam, 
Smith, Scott, and Morris used to attend, while the junior mem- 
bers of prominence were John Jay, Egbert Benson, Richard Mor- 
ris Smith, Robert R. Livingston, Stephen DeLancey, and Lindley 
Murray. Many learned questions were seriously discussed : and 
it is said that a Chief Justice of the Superior Court once sent 
an issue of law to the Moot for its advice. Its last meeting was 
on January 6. 17751 T ' 

One other feature in the practice of the profession in these 
early years, which disappeared later, had a marked influence on 
the lawyer's development the close, personal relationship which 
the members of the Bar bore to each other. 

This is well described in a letter from John Adams to his 
nephew William Cranch (the Supreme Court Reporter >. of 
March 14, 1790. 

To the original of the bar meetings I was a witness. . . 
They introduced a candor and liberality in the practice of the 
Bar that was never before known in Mass. Mr. Pratt was so 
sensible of their utility that when we took leave of him at Ded- 
ham, his last words to us were. Brethren, forsake not the 
assembling of yourselves together. My advice to you and all 
the young gentlemen coming up, as well as to those now on 
the stage, is never to suffer such meetings to go into disuse, let 
who will clamor about them. . . . What? is it unlawful for 
the gentlemen of the profession to spend an evening together 
once a w r eek ? to converse upon law and upon their practice : to 
bear complaints of unkind unfair and ungentlemanlike practice; 
to compare difference : to agree that they will not introduce 
ignorant, illiterate, or ill bred, or unprincipled students or can- 

(i) See The Republican Court, by Rufus W. Griswold (1855). 
11 



1 62 HARVARD LAW SCHOOL. 

didates; that they will not practice any kind of chicanery, or 
take unmanly disadvantages of one another, to the injury of 
clients, for accidental or inadvertant slips in pleading or other- 
wise? 

And again he wrote : 

Many of these meetings were the most delightful entertain- 
ments I ever enjoyed. The spirit that reigned was that of sense, 
generosity, honor, and integrity ; and the consequences were most 
happy ; for the courts and the Bar, instead of scenes of 
wrangling, chicanery, quibbling and ill manners, were soon con- 
verted into order, decency, truth and candor. Mr. Pratt was so 
delighted with these meetings and other effects, that when we 
all waited upon him to Dedham on his way to New York to take 
his seat as Chief Justice of that State, he said to us, Brethren, 
above all things forsake not the assembling of yourselves together. 

The intimacy and gaiety of the intercourse between the Bar 
and the Bench, is shown in the account of the conditions sur- 
rounding James Sullivan's practise in Massachusetts and Maine 
in the latter part of the i8th Century.(i) 

Professional habits were decidedly convivial, and gentlemen 
thrown together for several weeks, often under the same roof, 
were quite disposed to be amused. The manners of the judges 
were not only decorous, and the members of the Bar were cour- 
teous and well-bred ; but in their familar intercourse there was 
little formality or restraint and their festivities were seasons of 
wit and frolic, and often sufficiently uproarious. When the busi- 
ness of the term was nearly completed, it was customary for 
both Bench and Bar to assemble at the tavern for a social meet- 
ing. On these occasions, they constituted a court among them- 
selves, appointing one of their number Chief Justice, for the 
trial of all breaches of good fellowship during the term. Judge 
Sewall describes one of these meetings at Biddeford, when the 
inferior court was sitting at Ladd's Tavern, there being no court- 
house in the place. John Lowell had arrived, late on Monday 
evening, to attend its sessions, and, finding the inn full, sought 
lodgings elsewhere, probably at his friend Sullivan's, where he 
was always a welcome guest. He left his horse tied at the inn 
door, expecting it would be properly cared for ; but the land- 
lord never gave it a thought. When, on Friday evening, a court 
was held for the hearing of all omissions and commissions which 
had occurred during the week, Ladd was called upon to answer 
for leaving the horse unattended to, and defended himself on the 

(i) Life of James Sullivan, by R. G. Amory. 



BAR ASSOCIATIONS. 163 

plea that he had received no orders to put him up. The case was 
tried with becoming gravity, and the judge, upon the evidence, 
sentenced Ladd to pay a single bowl of good punch for his neg- 
lect, and Lowell twice as much for not taking care of his own 
steed. 

And the same conviviality existed in the other States, as Ken- 
nedy's description of the Virginia Circuits, during the early life 
of William Wirt, shows(i) : 

The riding of the Circuit, which always brought several into 
company, and the adventures of the wayside, gave to the Bar a 
sportive and lighthearted love of association which greatly fost- 
ered the opportunity and the inclination for convivial pleasure. A 
day spent upon the road on horseback, the customary visits made 
to friends upon the way, the jest and the song, the unchecked 
vivacity inspired by this grouping together of kindred spirits 
all had their share in imparting brotherhood. Then the contests 
of the Bar which followed in the forum, the occasions they 
afforded for the display of wit and eloquence, and the congrat- 
ulations of friends were so many additional provocatives to that 
indulgence which found free scope, when evening brought all 
together under one roof, to rehearse their pleasant adventures 
and to set flowing the currents of mirth and good humor, "to 
make a night of it" as the phrase goes. The Bar yet retains some 
of these characteristics; but the present generation (1849) ma y 
but feebly conceive the pr evading and careless joyousness with 
which in that early time the members of their mirthful craft pur- 
sued their business through a country side. . . . The pres- 
ent generation will bear witness to many an ancient green room 
joke of the circuit. 

In fact, many older lawyers have been of the opinion that the 
largest and best part of the legal education of the past was this 
mingling of the whole Bar together in travelling from county to 
county, and from court to court, the enforced personal relations 
which were brought about, and the presence of the younger mem- 
bers of the Bar during the trials of cases by their seniors. 

"An able Bar," said Hugh Blair Grigsby, of Virginia, in his 
eulogy of L. W. Tazewell, "is the best school of law; for of 
all lessons for a student, the contests of able men with each other 
in the practical game of life are the best." 

Perhaps nowhere was this side of a lawyer's training bet- 
ter summed up than in the words by Senator George F. Hoar 
(writing, it is true, of a later period of practice (1845-1855), 

(i) Memoirs of William Wirt, Vol. I, by John P. Kennedy (1849). 



1 64 HARVARD LAW SCHOOL. 

but of a period which had not entirely lost the old characteris- 
tics) (i): 

The judge and jurymen and the lawyers from out of town 
used to come into Worcester and stay at the old Sykes or Thomas 
Tavern. 

The court sat till six o'clock and often far into the evening 
and began at half past eight or nine so there was no chance 
for country lawyers to go home at night. There was great fun 
at these old taverns in the evening and at meal time . . . The whole 
Bar and the public seemed to take an interest in important trials. 
People came in from the country round about with their cov- 
ered wagons, simply for the pleasure of attending court and see- 
ing the champions contend with each other. The lawyers who 
were not engaged in the case were always ready to help those 
who were, with advice and suggestion. It used to be expected 
that members of the Bar would be in the court house hearing 
the trials, even if they were not engaged in them. ... I cannot 
but think that the listening to the trial and argument of causes 
by skilful advocates was a better law school than any we have 
now and that our young men especially in the large cities fail 
to become good advocates and to learn the art of putting on a 
case and of examining and cross examining for want of a con- 
stant and faithful attendance on the courts. 

A similar glimpse of the sociability of the judges and the law- 
yers, written of a later periocl, but descriptive of the earlier 
is to be found in the diary of Richard Henry Dana, Jr. (2) 

March 10, 1853. Court at Dedham. We have very pleas- 
ant times here at the trials. The judge, the sheriff and the mem- 
bers of the Bar from out of town board together at the hotel ; 
the judge sitting at the head of the table, and the sheriff at the 
foot, the lawyers seating themselves by a tacit understanding 
according to age and importance, and there is a good deal of 
pleasant conversation. At dinner there will often be a stray 
guest from Boston, who has come up to make a motion or look 
after his docket. Choate, Bartlett and Hallett dropped in on 
us this week. Here, too, is the remnant of the old style in 
which the courts used to be received. The sheriff with a long 
white rod comes to the tavern and stands by the door and pre- 
cedes the judge on his way to court and into his seat, and in 
the same way conducts him back at the adjournment each day. 

(1) Autobiography of Seventy Years, by George F. Hoar, Vol. II. 

(2) Richard Henry Dana, by C. F. Adams, Vol. I, (1891). 



CHAPTER VIII. 
EARLY LAW PROFESSORSHIPS. 

With the close of the Revolutionary War there began a new 
era in legal education. 

The broadening of the field of general education and the de- 
velopment of American Nationality in all branches of arts and 
sciences, which then took place, were reflected in the plans which 
were made in various American colleges to introduce the study 
of the Law into their curriculum. It seems to have escaped 
the attention of historians, however, that the first move in this 
direction was at Yale College and by its President, Ezra Stiles, 
a man of singularly liberal learning and broad character. ( i ) 

It appears from President Stiles' diary that, at the time of 
his election in 1777, the Assembly or Legislature of Connecti- 
cut proposed to endow three professorships for the College 
one of law, one of medicine, and one of oratory, provided the 
Assembly might have some voice in the appointment of Pro- 
fessors and Government of the College, and provided Stiles 
should be elected President (2) 

The plan was never consummated, as the Corporation of the 
College declined to yield any of its powers. Pending negotia- 
tions, however, President Stiles was actively interested in the 
project, as appears from his diary Dec. 3, 1777: 



(1) See Literary Diary of Ezra Stiles, Vol. II, p. 209. 

"Sept. 19, 1777. My election to the Presidency of Yale College is an un- 
expected and wonderful ordering of Divine Providence. Not but that it 
has been talked of for years past ; but I knew such reasons in the breasts of 
the fellows and I tho't such were the sentiments of the Assembly and a 
plurality of the Pastors respecting my ideas of ecclesiastical polity and doc- 
trinal system of divinity as that it was impossible I should be elected . . . 
I have no more resolved in my mind whether I am qualified for such an 
office than for that of a prime minister or a Sultan ; or whether I should 
on the whole be desirous of it; considering the smallness of the salary, 
and the great and complicated difficulties and labours which attend it, and 
hundred and fifty or 180 young gentlemen students is a bundle of wild 
fire not easily controlled and governed and at best the diadem of a 
president is a crown of thorns." 

(2) See Literary Diary of Ezra Stiles, Vol. II, under dates of Sept. 27, 
1777, Nov. 13, 1777, Nov. 14, 1777, Dec. 3, 1777, Feb. 12, 1778, Feb. 27, 
1778. 



166 HARVARD LAW SCHOOL. 

I drafted a plan of an University, particularly describing the 
Law and Medical Lectures, at the desire of the Corporation of 
Yale, to be by them laid before the Committee of the General 
Assembly of Connecticut, appointed to consider among other 
things whether it be expedient to found these two professor- 
ships. 

This plan for a law professorship the earliest ever suggested 
in this country is well worthy of reproduction in full, as it 
has never before been published. ( i ) 

The Professorship of Law is equally important with that of 
Medicine ; not indeed towards educating Lawyers or Barristers, 
but for forming Civilians. Fewer than a quarter perhaps of the 
young gentlemen educated at College, enter into either of the 
learned professions of Divinity, Law or Physic: The greater 
part of them after finishing the academic Course return home, 
mix in with the body of the public, and enter upon Commerce 
or the cultivation of their Estates. And yet perhaps the most 
of them in the Course of their Lifes are called forth by their 
Country into some or other of the various Branches of civil 
Inprovement & the public offices in the State. Most certainly 
it is worthy of great attention, the Discipline and Education 
of these in that knowledge which shall qualify them to be- 
come useful Members of Society, as Selectmen, Justices of 
Peace, Members of the Legislature, Judges of Courts, & 
Delegates in Congress. How happy for a community to 
abound with men well instituted in the knowledge of their 
Rights & Liberties? This Knowledge is catching, & insinuates 
[among those] not of liberal Education to fit them for public 
service. It is greatly owing to the Seats of Learning among us 
that the arduous Conflict of the present day has found Amer- 
ica abundantly furnished with Men adequate to the great and 
momentous Work of constructing new Policies or forms of 
Government and conducting the public arrangements in the mili- 
tary, naval & political Departments & the whole public adminis- 
tration of the Republic of the United States, with that Wisdom 
& Magnanimity which already astonishes Europe and will honor 
us to late Posterity. We are enlarging into still greater Systems, 
in which we may transplant the Wisdom of all Countries & 
Ages. It is in this view chiefly, & principally for this end, that 
the several States may see the Expediency of endowing Pro- 
fessorships of Law in the Colleges. It is scarce possible to en- 



(i) From a copy of the original manuscript now in the Yale Univer- 
sity Library, furnished to the author by the courtesy of Franklin 
B. Dexter, Assistant Librarian of Yale UYiiversity. 



LAW PROFESSORSHIPS. 167 

slave a Republic of Civilians, well instructed in their Laws, 
Rights & Liberties. The Lectures of a Professorship of Law 
may be resolved into four series. 

I. The civil Law. It will be necessary to exhibit an Idea 
of the antient Roman Law in its purest State under the Senate, 
before the period of the Gesars, & previous to the mutations 
which the Jus civile received by the imperatorial Edicts : then 
to take a view of the imperatorial Law down to the Times of 
Justinian. Then instead of attending to the mutations it as- 
sumed by being blended with the local Laws of the Roman 
Conquests, the Provinces instead of considering how much of 
it is still preserved in the Jurisprudence of Poland, Germany, 
Holland, France, Spain or Italy go directly to England and 
consider how much of the Jus civile entered into the Jurisprud- 
ence of England, for the greatest part of the Jurisprudence of 
America has been adopted from England. Three Streams of 
the imperial Law entered England & obtaines there with Efficacy 
to this day. The first is the canon or ecclesiastical Law, which 
it is hoped will never enter America; the second testamentary 
law; the third the maritime Law in Admiralty Courts. This 
last is of great Importance, for the Laws of Rhodes & Oleron. 
The whole system of Maritime Law will probably be adopted 
by these States, under the Improvement of a Jury for Trials in 
maritime Courts. This is all of the Civil Law which will be ever 
necessary for Americans to study. 

II. The second series of Lectures may be upon the Common 
Law of England. For although neither this nor any other foreign 
Law will ever be in force in America by any Authority or Jur- 
isdiction on the other side the Atlantic, it will however prevail 
by derivative Use, Custom & Adoption. It will be of particular 
Utility to exhibit a Lecture of Negatives, ?". e., a number of capi- 
tal Things of the common Law of England which never could 
be, nor never was introduced here & so to draw the Line leav- 
ing all the rest as the common Law System of these States. 
Connected with this may be a summary Representation of the 
Statute Law, both those designedly made by Parliament foi 
the Colonies which are henceforth forever abolished, & those 
adopted by the American Legislatures : and tho' many of these 
will be repealed, yet the greater part may remain in the Juris- 
prudence of the United States. As Justinian's Institutes may 
be the Textual Book for the Civil : so Hale's Analysis &c may 
be for the common Law. 

III. The Subject of the third Series will be the Codes of 
the thirteen States. The Professor will exhibit the Spirit & Gov- 
erning Principles of each Code. Connected with this will be a 
particular Representation of the Jurisprudence of Connecti- 
cut, the Courts & their Jurisdictions, and as much of the Course 
of Practice as is founded in principle, and not merely officinal. 



168 HARVARD LAW SCHOOL. 

for this is best learned at the Bar & by living with a Lawyer. 
Degrees to be taken. 

IV. The last Series may consist of Lectures exhibiting the 
Policies and Forms of Government of all the Kingdoms, Em- 
pires & Republics in the World, especially those of Europe & 
that of China which last is perhaps the best formed Policy on 
Earth, as it alone combines one-third of the whole human race. 
The Nature & Wisdom of such a Policy is worthy the peculiar 
Attention of the infant Empire in America, growing into a future 
Greatness & Glory surpassing perhaps what have ever appeared. 
And as we shall transplant all the Improvements in Knowledge, 
Manufactures & Commerce from all Countries, so by a thorough 
Knowledge of the fundamental Principles of their respective 
public Politics, we may learn how to distinguish & avoid Pre- 
cedents dangerous to Liberty. Summary Representations of the 
Spirit of the Laws & Jurisprudence of each & all the Kingdoms 
& States will shew us what, having endured the Trial of Ages, 
will be worthy of Adoption by the American Legislatures. All 
this will lay a Foundation for the accurate Knowledge of the 
Laws of Nations Laws of mutual Intercourse & political Trans- 
actions between separate Sovereignties & Independent States, a 
Branch of Knowledge necessary to regulate the Intercourse be- 
tween these States, as well as the negotiations with European & 
other foreign Powers. This will enable such a multitude of 
Gentlemen among the body of people at large to judge on politi- 
cal matters, as shall awe those into Fidelity whom the States 
may entrust with public & important negotiations. This political 
Knowledge diffused through a State, will establish its Liberty, 
Security & Aggrandizement too firmly to be overturned by either 
a military power or those insidious Arts & corrupt measures, 
which in conjunction with Arms have at length in all countries 
prostrated the Rights of mankind, in a general Ruin. The cul- 
tivation of this political Knowledge & Wisdom will transfuse 
a spirit among the body of the people in America [which] will 
be the only security of their Liberty under Providence, & tend 
to effect that public Virtue & produce those wise Institutions 
which may advance the United States to the Summit of politi- 
cal Perfection & Honor. 

As stated before, this law professorship was never actually 
founded ; although candidates for the positions were discussed ; 
and John Adams, writes Stiles, "spoke of Mr. John Trumbull 
Treas., of Yale Coll. as qualified for a Professorship in Law."(i) 

Notwithstanding the failure of his plan, President Stiles evi- 



(i) John Trumbull was a Yale graduate of 1767, had studied law in 
the office of John Adams at Boston, was a practising lawyer in New 
Haven and Treasurer of Yale College, 1776-1782. 



LAW PROFESSORSHIPS. 169 

dently retained his belief in the value of law as a part of an 
undergraduate education; for July 13, 1781, he notes in his 
Diary, "I gave an evening lecture on Law and Jurisprudence;" 
and on March 12, 1789, "This day I introduced for the first 
time Montesquieux Spirit of Laws as a Classical book into Yale 
College. The Senior Class began to recite the first Vol. this 
day. It never was used here before. But it has been recited 
in Jersey Coll (Princeton) ph. 3 or 4 years;" and on March 8, 
1792, he noted that he gave a "Lect. on Law, i. Law of Na- 
ture and Nations, 2 Jus Civile or antient Rom. Law, Pandects, 
Imperatorial Edicts and Eccl. or Canon Law, 3. Law of Engl. 
Common Law, Statutes, Courts of Westminster Reports, 4. Laws 
of the United States." 

Although the Bar of Virginia was by no means the most 
prominent of the Colonial Bars, the first American Law Pro- 
fessorship (and the second in any English speaking country), 
was founded at the College of William and Mary in 1779 in 
the year after Blackstone had published the eighth and final 
edition of his lectures, and a year before his death. 

It was to Thomas Jefferson that the science of law owed its 
first collegiate professor, eighty-seven years after the charter- 
ing of the College. In his autobiography he says: 

On the first of June 1779, I was appointed Governor of the 
Commonwealth and retired from the Legislature. Being elected 
also one of the visitors of William and Mary College, a self elect- 
ing body, I effected, during my residence in Williamsburg that 
year, a change in the organization of that institution, by abol- 
ishing the Grammar School and the two Professorships of 
Divinity and Oriental Languages, and substituting a Professor- 
ship of Law and Police, one of Anatomy, Medicine and Chem- 
istry, and one of Modern Languages ; and, the charter confining 
us to six Professors, we added the Law of Nature and Nations 
and the Fine Arts to the duties of the Moral Professor, and 
Natural History to those of the Professor of Mathematics and 
Natural Philosophy. 

The following regulation was then adopted : 

A student on paying annually 1000 pounds of tobacco shall 
be entitled to attend any two of the following professors, viz: 
of Law and Police ; of Natural History and Mathematics ; of 
Moral Philosophy, the Laws of Nature and of Nations, and 
of the Fine Arts. 



1 70 HARVARD LAW SCHOOL. 

Jefferson's old friend and teacher, George Wythe (then judge 
in the Court of Chancery), was appointed Law Professor. 
One of his first pupils, in 1779-1780, was John Marshall; but, 
the college exercises being interrupted by the occupation of the 
buildings successively by the British and French, in the summer 
before Yorktown, Marshall's law studies came to a rapid end, 
and he was admitted to the Bar, after slight preparation, in the 
same year, 1780. (i) Among other of Wythe's students, prior 
to 1800, who later became distinguished lawyers, were Spencer 
Roane, Marshall's rival at the Virginia Bar; Benjamin Watkins 
Leigh, John J. Crittenden, William A. Rives, Alexander Camp- 
bell, John Breckenridge, John Wickham, H. St. George Tucker, 
W. H. Cabell, and L. W. Tazewell. 

"Wythe, above all early statesmen, was deeply learned in the 
law ; had traced all its doctrines to their fountain heads, de- 
lighted in the year book, from doomsday down; had Glanville, 
Bracton, Britton, and Flcta bound in collects; had all the Brit- 
ish Statutes at full length, and was writing elaborate decisions 
every day, in which, to the amazement of county court law- 
yers, Horace and Aldus Gellius were sometimes quoted as au- 
thorities." (2) 

"He carried his love of antiquity rather too far, for he fre- 
quently subjected himself to the charge of pedantry ;_ and his 
admiration of the gigantic writers of Queen Elizabeth's reign 
had unfortunately betrayed him into an imitation of their quaint- 
ness Yet, he was a man of great capacity, powerful in argu- 
ment, elegantly keen and sarcastic in repartee long the rival 
of Mr. Pendleton at the bar, whom he equalled as a common 
lawyer and greatly surpassed as a civilian. . . . No man was ever 
more entirely destitute of art ... This simplicity and integrity of 
character sometimes exposed him to the arts and sneers of the 
less scrupulous but he was not only pure, but above all sus- 
picion."^) 

(1) American Historical Association Papers, Vol. IV. 

(2) Discourse on Life and Character of Littleton Waller Tazeivell, by 
Hon. Hugh Blair Grigsby (1830). 

(3) Sketches of the Life of Patrick Henry, by William Wirt (1817). 
John Randolph said of him, "he lived in the world without being of the 

world; that he was a mere incarnation of justice that his judgments were 
all as between A and B ; for he knew nobody ; but went into court, as As- 
traea was supposed to come down from heaven, exempt from all human 
bias." 

See especially The Supreme Court of Appeals in Virginia, Green Bag. 
Vol. V. 





GEORGE WYTKE. 
N<it 1Y2G - Ob. 18 06 



I' 



LAW PROFESSORSHIPS. 171 

The quality of Judge Wythe's lectures may be estimated by 
the following opinion of Judge Roane, expressed regarding a 
manuscript copy of these lectures, in a letter from Governor 
John Tyler written to Jefferson, in 1810: 

Judge Roane has read them, or most of them, and is highly 
pleased with them, thinks they will be very valuable, there being 
so much of his sound reasoning upon great principles, and not 
a mere servile copy of Blackstone and other British Commen- 
tators a good many of his own thoughts on our constitutions 
and the necessary changes they have begotten, with that spirit 
of freedom which always marked his opinions.(i) 

The following enteresting sidelight on this Professorship of 
Law is found in President Stiles' diary, June 8, 1784(2) : 

His Excellency, Gov. Jefferson of Virginia visited me with a 
letter from Mr. (Roger) Sherman at Congress. . . . He 
was educated at and entered Wm. & Mary Coll. 1761, where he 
studied five years, and left in 1766. Then became a Lawyer. 
He was one of the 24 visitors of Wm. & Mary Coll. . . . 
The salaries of the professors were 80 in Tobacco, now worth 
150 or 160, the price of tobacco has doubled. The Professors 
besides their salys. have about 8 in Tobacco, now 12 or 15, 
from each scholar per ann. for Instruction. There are Eighty 
L^ndergraduates Students at present. . . . The Professor is 

(1) The rest of the letter is of interest. It is not known if the lec- 
tures referred to are in existence now or not. 

"Perhaps Mr. Ritchie before this time has informed you of his having 
possession of Mr. Wythe's MSS. lectures delivered at William and Mary 
College while he was professor of law and politics at that place. They are 
highly worthy of publication and but for the delicacy of sentiment and the 
remarkably modest and unassuming character of that valuable and virtu- 
ous citizen they would have made their way in the world before this. It 
is a pity they should be lost to society and such a monument of his mem- 
ory be neglected. As you are entitled to it by his will (I am informed) as 
composing a part of his library, could you not find leisure time enough 
to examine it and supply some omissions which now and then are met with, 
I suppose from accident, or from not having time to correct and improve 
the whole as he intended. 

I do not see why an American Aristides should not be known to future 
ages. Mr. Wm. Crane gave it to Mr. Ritchie who I suppose got it from 
Mr. Duval who always had access to Mr. Wythe's library and was much 
in his confidence." 

See Letters and Times of the Tylers, by Leon G. Tyler, Vol. I. 

(2) See Literary Diary of Ezra Stiles,Vo\. Ill, p. 124, (1901). Thomas 
Jefferson had been introduced to Stiles by Roger Sherman in the fol- 
lowing letter dated Annapolis, May n, 1784. 

"I take the liberty to introduce to you the Honorable Thomas Jefferson, 
Esqr. . . . He is a Gentleman of much philosophical as well as politi- 
cal knowledge and I doubt not you will be very agreeably entertained 
with his conversation." 



1 72 HARVARD LAW SCHOOL. 

the Att. Gen. of the State and he makes more by his Professor- 
ship than as Attorney. . . . The Gov. is a most ingenious 
Naturalist and Philosopher a truly scientific and learned man 
and every way excellent. . . . Blackston is the Basis of 
Law Lect. in Wm. & Mary Coll., Philosophy, Medicine and 
Law seem to be their object. 

Wythe resigned his professorship in 1800, and the chair was 
filled by St. George Tucker, whose lectures became the basis 
of his famous edition of Blackstone, published in 1803, and con- 
taining his commentaries on the Federal Law and Constitution. 
It was not until 1824, however, that the College conferred any 
degree of LL.B. 

Ten years after the foundation of this Virginia professor- 
ship, the College of Philadelphia, on Aug. 17, 1790, formally 
appointed as Professor of Law, James Wilson, then an Asso- 
ciate Justice of the United States Supreme Court. The idea 
of this professorship probably originated in a request made to 
the Trustees by Francis Hopkinson, in 1789, that a number of 
young lawyers, who had formed themselves into a society for 
their mutual improvement, might have permission to hold their 
meetings in a college room. A year later, in August, 1790, the 
Trustees appointed Edward Shippen, James Wilson and Charles 
J. Hare, a committee to consider the utility and propriety of a 
law professorship. Wilson reported a plan embracing Constitu- 
tional and International Law, Origin and Rules of Common 
Law, Civil Law, Law Merchant and Maritime Law, designed 
"to furnish a rational and useful entertainment to gentlemen of 
all professions, and in particular to assist in forming the Legis- 
lator, the Merchant, and the Lawyer."(i) 

Philadelphia, at this time, was the seat of the Federal Gov- 
ernment ; and the first of the twenty- four lectures which he was 
to deliver was given by Judge Wilson in the Hall of the Acad- 
emy, in the presence of President Washington and his Cabinet, 
the Governor, and Members of Congress and of the Legislature, 
Mrs. Washington and other ladies, " a polite assembly" as the 
papers of the day described it. (2) Although he had read law 
with John Dickinson, and had been one of the signers of the 

(1) Historical Sketch of the Law Department of the University of 
Pennsylvania, by Hampton N. Carson (1882). 

(2) As to these lectures of Judge Wilson, see History of Law Schools 
Amer. Bar Assn. Proc. Vol. XXIV. See also American Law Schools, 
by W. G. Hammond, Southern Law Review, Vol. VII. 



LAW PROFESSORSHIPS. 173 

Declaration of Independence, and one of the leaders of the 
Philadelphia Bar, "Mr. Wilson on the bench was not the equal of 
Mr. Wilson at the bar, nor did his law lectures entirely meet the 
expectations that had been formed," wrote William Rawle, who 
practised under him;(i) and another contemporary writer said, 
"These lectures (since included in his works, published in 1804), 
have not met with general approbation, nor is their excellence 
altogether undisputed." It seems that his violent criticisms of 
Blackstone, and his ultra-Federalist views as to the powers of 
the National Government, did not commend themselves to the 
lawyers or to the public. 

Of this first lecture, Fisher Ames wrote from Philadelphia 
to Thomas Dwight, Jan. 6, 1791(2) : 

I enclose Judge Wilson's introductory law lecture, addressed 
with a propriety which he says malice cannot question, to Mrs. 
Washington. . . . The great law learning and eminent sta- 
tion of the writer had raised great expectations of the perform- 
ance. Whether there are not many parts that discretion and 
modesty . . . would have expunged you will be at liberty to judge. 
It will be a frolic for the London Reviewers to make the Judge's 
feathers fly. He has censured the English form of government 
and can expect no mercy. 

The truth is, Wilson's temper and habits were those of an 
advocate, rather than of a judge. His style was diffusive ; and 
the lectures, though scholarly and elegant essays on general 
jurisprudence, embellished with historical allusions, were not 
useful as practical instruction in Common Law (3) Published 
in 1804, these lectures are now chiefly of interest for the com- 
plete exposition of Wilson's views of the principles of the Con- 
stitution and of the Federal Government. 

The course was kept up through part of the second winter ; but 
though requiring a third season for its completion, was discon- 
tinued, probably because of lack of general interest shown by 
the students. And although on the consolidation of the College 
of Philadelphia with the University of Pennsylvania, in 1792, a 

(1) See Address of Samuel Dickson, Penn. Bar Assn. Proc., Vol. VI. 

(2) Life and Letters of Fisher Ames. 

(3) See The Study of the Common Law, by W. D. Lewis, Penn Bar 
Assn. Proc. Vol. IV. 

See also comments on these lectures by David Hoffman, in 1823, in his 
Lecture introductory to a course of lectures now delivering in the Univer- 
sity of Maryland. 



174 HARVARD LAW SCHOOL. 

similar law professorship was founded, to which Wilson was 
appointed, he gave no lectures. He died in 1798. No step was 
taken to fill his place, until March 20, 1817, when Charles 
Willing Hare (who had been admitted to the Bar in 1799 with 
Charles Chauncey, John Sergeant, and John B. Wallace) was 
elected Professor. 

From 1790 to 1824, it is stated that David Howell, a dis- 
tinguished lawyer of Rhode Island, filled a chair of Law at 
Brown College, being also Professor of Mathematics and Natural 
Philosophy ; but little is known of his lectures. 

There had been a professorship of Natural Law in King's Col- 
lege (Columbia) in New York, as early as 1773; but it does not 
appear from the records that anything like a system of education 
in Common Law, or in the preparation of young men for the 
Bar, was intended. The Professor probably taught political 
ethics, rather than law. At the disruption of the College, in 
1776, when the British occupied New York, the professorship 
was discontinued. But in 1784, the College voted to establish an 
elaborate curriculum of sixteen professorships in the Faculty of 
Arts, eight in the Faculty of Medicine, three in the Faculty of 
Law and a Faculty of Divinity. (i) No further action was taken 
as to a Faculty of Law until Dec. 2, 1793, when the Trustees 
resolved to establish a professorship of law, with a salary of two 
hundred pounds per annum, to be paid out of the founds allowed 
to the College by the Legislature ; and James Kent was elected to 
fill the chair. (2) 

A graduate of Yale in 1781, Kent had, at the time, a rather 
small practice in Poughkeepsie, but had "with an intensity of 



(1) The College Curriculum in the United States, by Louis F. Snow 
(1907). 

(2) A Pamphlet entitled Present State of Learning in Columbia Col- 
lege, says: 

"This Professorship is intended to comprise a brief review of the his- 
tory, the nature, the several forms and just ends of civil government a 
sketch of the origin, progress and final settlement of the government of 
the United States a particular detail of the organization and duties of the 
several departments of the general government, together with an examina- 
tion of such parts of the civil and criminal codes of the federal 
jurisprudence as shall be most susceptible of illustrations and most con- 
ducive to public utility. The constitutions of the several states and the 
connections they bear with the general government will then be consid- 
ered and the more particular examination of the constitution of this state. 
The whole detail of our municipal law with relation to the rights of 
property and forms of administrating justice, both civil and criminal will 
be treated fully and at large." 



LAW PROFESSORSHIPS. 175 

ardor embarked in Federal politics and quite gained an ascendant 
in the local proceedings and discussions." 

. . It was the character I had insensibly acquired as a scholar, 
and a Federalist, and a presumed (though it was not true) well 
read lawyer, that the very first year that I removed to New York, 
I was appointed a Professor of Law in Columbia College. The 
influence of Dr. S. Bard, of Judge Hobart (of the Supreme 
Court), of B. Livingston, Edward Livingston, and probably of 
Chief Justice Jay procured me the appointment. ( I ) 

Kent wrote regarding his course of lectures which began in 
Nov., 1794, in the College Hall. 

I read that season twenty-six lectures (two a week), and 
was honored by the attendance, throughout the course, of seven 
students and thirty-six gentlemen, chiefly lawyers and law stu- 
dents who did not belong to the college. . . . They were 
very well received ; but I have long since discovered them to have 
been slight and trashy productions. I wanted judicial labors to 
teach me precision. I soon became considerably involved in 
business, but was never fond of, nor much distinguished in, the 
contentions of the Bar. 

One of his hearers, however, entertained a different view of the 
introductory lecture, and described "the views that it unfolds of 
the true nature and province of the law and of the advantages 
to be derived from its study" as "judicious, discriminating, and 
comprehensive." This lecture was privately printed by the Trus- 
tees of the College in 1794; and, the next year, the first three lec- 
tures, or dissertations, on the Theory, History and Duties of 
Civil Government, the History of the American Union, and the 
Law of Nations, were published in book form by the author. 

Of these lectures, John Adams wrote, in 1795, to his son, "I 
am much pleased with the Lecture and esteem the talents and 
character of the Professor". When he closed his course, in 
March 1795, Kent wrote that his lectures had extended not only 
through the Constitution and jurisprudence of the Union, the 
Constitution of this and the other States, but our doctrine of real 
property. 

My first plan was to examine law of personal property, includ- 



(i) Memoirs of Chancellor Kent, by William Kent (1898). 



176 HARVARD LAW SCHOOL. 

ing the commercial branches and the system of our criminal 
code. But I found myself absolutely unable to complete the 
whole, and was obliged to leave this first course imperfect. It 
will be an easy thing to make these additions and review and 
improve the whole by next November. 

As a matter of fact, Kent never did completely "make these 
additions," until his later lectures delivered in 1824, but the 
earlier lectures, together with the later, formed the nucleus of his 
famous Commentaries. 

Of his second course, begun in November 1795, Kent wrote: 

I read thirty-one lectures in my office, and had only two stu- 
dents, besides my clerks. The next season I attempted another 
course ; but, no students offering to attend, I dismissed the busi- 
ness, and in May 1797, sent a letter of resignation to the Trustees. 
This was not accepted; and, in the winter of 1797 and 1798, in 
my office, I read lectures to six or eight students; and, in April 
1798, I finally resigned the office. 

In his letter of resignation to the Trustees he expressed the 
hope 

that the general principles of our Constitution and laws may 
still be academically taught, and that the institution which you 
have so liberally established may hereafter under abler profes- 
sors, and in more auspicious times be crowned with happier 
success. 

Though unsuccessful as a professor, Kent's claims as a pro- 
found lawyer were recognized, in this same year, by his appoint- 
ment as a judge of the Supreme Court, by John Jay, Governor 
of New York. He was, at the time, just thirty-five years of 
age. It would be unjust, however, to Kent's fame as a jurist to 
attribute the failure of his law course to any lack of legal abil- 
ity. Unquestionably, the heated political rancor of the time, 
the sharp division of parties, and the constant newspaper and 
pamphlet discussion of Federalist and Anti-Federalist principles 
caused the students of those days to regard these lectures as 
more political in their nature than legal. And while the lecturer's 
views on constitutional law were broad and scientific, they were 
essentially Federalist, saturated with Alexander Hamilton, and 
presenting a view of the power of the courts which was not pop- 



LAW PROFESSORSHIPS. 177 

ular with the rising tide of Republican, anti-John-Adams law- 
yers and laymen. (i) 

In the same year of Kent's resignation at Columbia, 1798, 
there was founded the first collegiate law professorship intended 
for other than undergraduates, which had any permanency. It 
is certainly striking that this event should have occurred in a 
little frontier town of about 1700 inhabitants at the University 
of Transylvania in Lexington, Kentucky. This institution was 
chartered in 1798, and in the next year the law department was 
organized, with George Nicholas as Professor of Law and Poli- 
tics. On his death, the same year, he was succeeded by James 
Brown, who held the office until 1804. In that year, Henry Clay, 
a young man of twenty-seven, who had been at the Bar seven 
years, was appointed, and held the professorship until 1807. He 
was succeeded by John Monroe, in 1807. Then the office lapsed; 
but was revived in 1814, when John Pope held it until 1816, suc- 
ceeded by Joseph Cabell Breckenridge, in 1817. 

The University, though small and local, had, by 1802, acquired 
a library of 1700 volumes and also a separate law library. In 
1814, out of a total attendance of 62, nine were law students; 
and, in 1818, the University had a total of no students, or fully 
half the number then in Harvard College. 

Three years after Kent's resignation at Columbia, the Corpo- 



(i) The high conception of the place of a lawyer and of his duty to 
know the Constitution in a Republic, is shown in the following extracts 
from Kent's introductory lecture : 

"The importance of a knowledge of our Constitutional principles as a 
part of the education of an American lawyer arises from the uncommon 
efficacy of our courts of justice in being authorized to bring the validity of 
a law to the test of the Constitution. ... I consider then the courts 
of justice as the proper and intended guardians of our limited constitution 
against the factions and encroachments of the legislative body. 

. . . A lawyer in a free country . . . should be a person of 
irreproachable virtue and goodness. He should be well read in the whole 
circle of the arts and sciences. He should be fit for the administration of 
public .affairs and to govern the Commonwealth by his councils, estab- 
lish it by his laws and correct it by his example. . . . 

The people of this country are under singular obligations from the na- 
ture of their government to place the study of the law at least on a level 
with the pursuits of classical learning. The art of maintaining social order 
and promoting social prosperity is not with us a mystery for only for 
those who may be distinguished by the adventitious advantages of birth 
and fortune. ... A wide field is open to all all may be summoned in- 
to public employment. . . . Extensive legal and political knowledge 
is requisite to render men competent to administer the government. A 
general initiation into the elementary learning of our law has a tendency 
to guard against mischief and at the same time to promote a keen sense 
of right and warm love of freedom." 
12 



1 78 HARVARD LAW SCHOOL. 

ration of Yale College again took up the subject of legal educa- 
tion, and, as a part of President Dwight's efforts to broaden the 
scheme of studies, voted to establish a professorship of law: 

to furnish lectures on the leading principles of the Law of Nature 
and Nations, on the general principles of civil government, par- 
ticularly of Republican representative government, on the Con- 
stitution of the United States and of the State of Connecticut 
. and on the various obligations and duties resulting 
from the social relations, especially those which arise from our 
own National and State Governments. 

After that date no lectures were given until 1826, when the 
Hon. Elizur Goodrich, of the Class of 1779, was appointed to the 
Chair, and gave occasional lectures until 18105(1) after which 
date, no regular lectures were given until 1826, when the Kent 
Professorship was founded (endowed in 1833) : 

for delivering lectures, or otherwise communicating instruction 
to the undergraduates in the academic department in natural, 
international, constitutional or municipal law, and civil polity, 
and such other subjects of jurisprudence as the Faculty or cor- 
poration shall from time to time approve. 

Princeton College offered instruction in law to undergraduates, 
1795-1812, by its President Samuel S. Smith, whose lectures, as 
appears from the title page of Vol. 2 of his Moral and Political 
Philosophy (1812), comprehended "those principles on the sub- 
jects of jurisprudence, politics and public law or the law of 
nature and nations, with which every man ... in a free 
country ought to be acquainted. "(2) 

At Dartmouth College, as early as 1808, the Trustees, a large 
number of whom were eminent lawyers, planned to establish a 
law professorship, and accordingly passed the following vote 
Jan. 7, 1808(3): 

Whereas, An establishment of professorships in different 
branches of education at universities facilitates improvement; 
and as a more general acquaintance with the important science 

(1) President Dwight, in his Travels in New England, published in 
1821, says : "The Professor of Law at Yale is required to read 36 lectures 
only, to be completed in two years, on the Law of Nations, the American 
Constitution, and the Jurisprudence of Connecticut." 

(2) See Collegiate Study of Law, by James F. Colby, Amer. Bar Ass. 
Proc., Vol. XIX (1896). 

(3) See Legal and Political Studies in Dartmouth College, by James 
F. Colby (1896). 



LAW PROFESSORSHIPS. 179 

of law would be greatly conducive to the welfare and prosperity 
of the citizens of our country ; and as in promoting that end the 
establishment of a professorship of Law at this university is 
highly desirable; Therefore, 

Resolved, Unanimously that this board will proceed to estab- 
lish a professorship of Law and appoint a suitable person to 
the office so soon as adequate means shall be furnished. And as 
all the present funds are necessarily applied to other objects of 
education the liberal and patriotic are earnestly solicited to favor 
and promote by their munificence the early accomplishment of 
this design. 

Voted, that the secretary be requested to cause a suitable num- 
ber of subscription papers to be printed for the purpose of aiding 
the object contemplated in the foregoing resolution. 

Owing to the factional troubles which prevailed among the 
governing officials of the College, and which finally culminated 
in the famous Dartmouth College Case, in 1817, no action was 
taken under this vote for many years. 

In 1816, the Regents of the University of Maryland estab- 
lished a professorship of law, and appointed David Hoffman. 
He however gave no regular course of lectures ; but, in his 
own words : 

In America alone, a law student was left to his own insulated 
and unassisted efforts. In the hope of supplying what I deemed 
an important deficiency in the education of our country, I have 
since my appointment to the law Chair devoted myself to perform- 
ing a course of lectures, and sketched a plan, laid before the 
Public in my Syllabus, (April 1821), embracing every title known 
to the great body of law, exceeding in variety and extent any 
scheme of lectures hitherto attempted. I prepared A Course of 
Legal Study the first manual ever arranged for law students in 
England or this country (published in i8i7).(i) 

Later, 1821-1826, Hoffman conducted a struggling "Law Insti- 
tute," a private affair of his own, to which he proposed to deliver 
his stupendous course of 301 lectures, combined with a most elab- 
orate system of Moot Courts his fee being $120. From lack 
of interest or the expense, the number of students was small, and 
the school gradually died out. 

(i) An Address to Students of Law in the United States, by David 
Hoffman, (July, 1824). 

For further information as to Hoffman's work, see his Syllabus (April, 
1821) ; his First Lecture, on Law Books and Instruction, published in Oct. 
1823; his Second Lecture, published in 1825, his Third Lecture on Moot 
Courts in 1826, and his Ninth Lecture on Civil Law, in 1832. 



i8o HARVARD LAW SCHOOL. 

In 1816, Middlebury College in Vermont established a profes- 
sorship of law, which attracted considerable attention, because 
of its incumbent, the noted Nathaniel Chipman, Chief Justice 
of Vermont. (i) 

The system of study advocated was described by Chipman, 
in his introductory lecture : 

Let the student not content himself with merely learning to 
recollect or repeat the arguments or reasons which he has met 
with in reading as the arguments or reasons of others; but let 
him endeavor so to penetrate, understand and appropriate them 
that they may appear to his mind to be exclusively his own. The 
former is mere memory ; the latter only is knowledge. 
All this, the attentive student will find in the volumes of Black- 
stone, which as an elementary treatise, has not been surpassed in 
any science. The next step proper to be taken by the students is 
to proceed analytically ; to begin with one branch and the minor 
divisions of that branch, to make himself fully master of it; 
then and not till then, to proceed to another branch, until he 
shall have encompassed within his knowledge the whole system 
complete. In his course of reading it is indispensable for him 
if he wishes to make proficiency to turn to all the cases and 
authorities and to examine them for himself. 

It will be readily seen that none of these professorships 
attempted to afford a complete or practical education for law 
students. Towards the end of the i8th Century, however, sev- 
eral private law schools were founded by individual lawyers, 
where such an education could be obtained. 

Of these, the first and by far the most influential was that 
founded by Judge Tapping Reeve, and known as the Litchfield 
Law School. Oddly enough, this School, to which students came 
from all parts of the Union, grew up, not in any city or seat of 
learning, but in a little country town of Connecticut, a county seat, 
having hardly more than 1500 inhabitants, the home of the dis- 
tinguished Wolcott family, the birthplace of several Governors 
and Chief Justices of the Colony and of the State. "Here on a 
broad shaded street, in one of the most beautiful of New Eng- 
land villages, stood (and stands) an old Colonial house, the res- 
idence, at the close of the American Revolution, of a Connecticut 
lawyer. Hard by the house was the owner's law office, a small 



(i) See Life of Nathaniel Chipman, by Daniel Chipman (1846). 



LAW PROFESSORSHIPS. 181 

one story wooden building, much resembling the familiar district 
school."(i) 

In this small wooden building, Judge Tapping Reeve began 
his own School for law students, in 1784, (2) five years after 
Wythe was made professor of law at William and Mary, five 
years before the establishment of the United States Supreme 
Court, and five years before the publication (in Connecticut) of 
the first volume of American law reports. Judge Reeve was 
born in Long Island, New York, in 1744, a graduate of Prince- 
ton (then the College of New Jersey), in 1763, studied law with 
Jesse Root (3) at Hartford, and settled in Litchfield in 1772. 
Five years after he started his School, he was appointed judge 
of the Superior Court, and he became later Chief Justice. 

In 1798, one of his pupils, James Gould, then a practicing 
lawyer in Litchfield, born in 1770, and a Yale graduate of 1795, 
became associated with him. Later Jabez W. Huntingdon (4) 
assisted Judge Gould as an instructor. Judge Reeve died in 
1823, and Judge Gould had sole charge until 1833. 

Prior to 1798, the School had, in all, about 210 students. 
From 1798 to its abandonment, in 1833, there were 805 stu- 
dents. 

As proof of the national character of the School, it is interest- 
ing to note, that from 1798 down to the founding of the Har- 
vard Law School in 1817, the students (other than those from 
Connecticut), hailed from the following localities: Massachu- 
setts 72 ; New York 44 ; Georgia 35 ; South Carolina 27 ; Mary- 
land 25; New Hampshire 15; Vermont and Delaware 14 each; 
Rhode Island 1 1 ; Kentucky 9 ; Pennsylvania 8 ; New Jersey 
and North Carolina 7 each ; Virginia 6 ; Louisiana 3 ; District 
of Columbia and Ohio 2 each; Maine and Mississippi I each. 



(1) Address of Prof. James Barr Ames, at the Dedication of the New 
Building of the Law Department of the Univ. of Penn. (1900). 

(2) A writer in the Albany Law Journal, Vol. XX, in an article on the 
Litchfield Law School, says that it was established in 1782; and so it ap- 
pears in the catalogue of the School, published in 1831. Professor Joel 
Parker, of the Harvard Law School, and other law writers, give the correct 
date, however, as being 1784. (See The La-w School of Harvard College, 
by Joel Parker (1871.) 

(3) Jesse Root was graduated at Princeton in 1756, became a preach- 
er, was admitted to the Bar as a lawyer in 1763, and after serving as 
colonel in the war and a member of the Continental Congress, became a 
judge of the Superior Court. 

(4) Jabez W. Huntingdon graduated at the School in 1808, was later 
United States Senator, and Judge of the Connecticut Supreme Court. 



182 HARVARD LAW SCHOOL. 

The founding of the Harvard Law School in 1817 and various 
private law Schools in Massachusetts (1820-30) largely reduced 
Litchfield's quota from that State; so that from 1817 to 1833, 
the graduates (outside of Connecticut), were distributed as fol- 
lows: from New York 81 ; Georgia 29; Pennsylvania 21; 
South Carolina and Massachusetts 16 each; Virginia and North 
Carolina 13 each; Maryland and Rhode Island n each; Ver- 
mont 10; New Jersey and New Hampshire 5 each; Louisiana 
and Delaware 4 each; Maine and Alabama 3 each; Ohio and 
District of Columbia 2 each ; Tennessee and Indiana i each. 

Of these alumni 16 became United States Senators; 50 Mem- 
bers of Congress ; 40 Judges of higher State courts ; 8 Chief 
Justices of State courts; 2 Justices of the United States Supreme 
Court ; 10 Governors of States ; 5 members of the Cabinet. And 
as Professor Joel Parker of the Harvard Law School said in 
1871(1): 

Probably no law school has had perhaps I may add never 
will have so great a proportion of distinguished men on its 
catalogue, if for no other reason, because attendance upon a Law 
School was then the rare exception, an advantage obtained in gen- 
eral only by very ambitious young men, and because there was 
then much less competition for the office and honors to which 
they aspired. 

The contemporary opinions of the School are interesting. In 
1813, it had fifty-four students, the largest in any one year of its 
history; and about that time, Timothy Dwight wrote(2) : 

It would not, it is believed, do discredit to any country. Law 
is here taught as a science, and not merely nor principally as a 
mechanical business ; not as a collection of loose independent 
fragments, but as a regular well compacted system. At the same 
time, the students are taught the practice by being actually 
employed in it. A court is constituted, actions are brought and 
conducted through a regular process, questions are raised and the 
students become advocates in form. Students resort to this 
school from every part of the American Union. The number of 
them is usually about 40. 

Nine years later, one of the first American law periodicals, 
the United States Law Journal, said in 1 822 : 



(1) Litchficld Hill, by John D. Champlin, quoted in the Catalogue of 
1900 prepared by George M. Woodruff and Archibald M. Howe. 

The Laiv School of Harvard College, by Joel Parker (1871). 

(2) Travels in Nen' England, by Timothy Dwight, Vol. IV. 




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LAW PROFESSORSHIPS. 183 

It enables the Law Student to acquire more in one year than 
is gained in three years if not in five in the ordinary method of 
securing an acquaintance with legal principles. . . . We 
speak with safety when our humble tribute is subsequent to the 
eulogium of such men as Chancellor Kent, Justice Spencer, Judge 
Story, the late C. J. Parsons. The fame of the law School at 
Litchfield was long since diffused over the nation and the sem- 
inary has been viewed for many years by legal tribunals as the 
fertile source of elemental knowledge and the nursery of eminent 
men. 

Judge Gould was thus portrayed by an early and loyal grad- 
uate, Charles G. Loring, of Massachusetts(i) : 

The recollection is as fresh as the events of yesterday of our 
passing along the broad shaded streets of one of the most beau- 
tiful of the villages of New England with our inkstands in our 
hands and our portfolios under our arms to the lecture room 
of Judge Gould the last of the Romans of Common Law law- 
yers the impersonation of its genius and spirit. It was indeed 
in his eyes the perfection of human reason by which he measured 
not only every principle and rule of action, but almost every sen- 
timent. . . . His highest visions of poetry seemed to be in 
the refinements of special pleading and to him a non sequitur in 
logic was an offence deserving at the least, fine and imprison- 
ment and a repetition of it, transportation for life. 

The plan of instruction pursued is described by Professor Joel 
Parker, with the following comments : 

Judge Gould read from his manuscript, pausing for the stu- 
dents to write out the principle or rule stated ; which was very 
well at that day when there were few elementary treatises, but 
no one would commend it for adoption at the present time 
(1871), when text books have multiplied ad infinituni. Judge 
Reeve's lectures were accompanied by more of colloquial explana- 
tion. 

In a letter written November 17, 1822, Judge Gould thus 
summed up the object of his system: 

Of the objects proposed in my lectures, the first is of course 
to possess my pupils of all the principal rules or doctrines of the 
law, to each of which I add a collection of reference. But a 
higher object, and one which I regard as in some measure pecu- 
liar to my plan of instruction, is to teach the law the common 
law especially not as a collection of insulated positive rules 
as from the exhibition of it in most of our books it would appear 

(i) See Biography of Marcus Morton, Laic Reporter. Vol. XXVI. 
(1863). 



1 84 HARVARD LAW SCHOOL. 

to be ; but as a system of connected rational principles, for such 
the common law unquestionably is ; not only in its fundamental 
and more comprehensive doctrines, but also, generally speaking, 
in its subordinate and more artificial provisions. In this view 
of the common law, I regard our books in general as extremely 
defective. They treat it rather as a code of arbitrary but author- 
itative rules and dogmas than as a science. They are conver- 
sant too exclusively about doctrines, to the neglect of principles. 
They deal much in rules, but little in reasons. In other words, 
they teach us what the rule is ; but seldom why it is. It is there- 
fore one of my primary objects to show the reason of the law 
by tracing its rules so far as I am able to their proper principles. 

Disciples of Professor Langdell and of the modern Harvard 
Law School System will read, with curiosity, Judge Gould's 
advice that: 

Reports, generally speaking, are to be read, only by way of ref- 
erence, as a test to the lectures or for the purpose of studying 
particular questions, given to them by discussion. I always dis- 
suade them from reading reports in course, until they have 
acquired a pretty thorough knowledge of the outline of the sci- 
ence by studying each principal title separately; being fully con- 
vinced that reading in the former mode is of little comparative 
profit in an early stage of legal studies. 

The catalogue of the Litchfield School gave the following detailed 
account of the schedule of its course and prices(i) : 

According to the plan pursued by Judge Gould, the Law is 
divided into forty-eight Titles, which embrace all its important 
branches, and of which he treats in systematic detail. These titles 
are the result of thirty years' severe and close application. They 
comprehend the whole of his legal reading during that period, 
and continue moreover to be enlarged and improved by modern 
adjudications. 

The Lectures, which are delivered every day, and which usually 
occupy an hour and a half, embrace every principle and rule fall- 
ing under the several divisions of the different Titles. These 
principles and rules are supported by numerous authorities, and 
generally accompanied with familiar illustrations. Whenever 
the opinions upon any point are contradictory, the authorities in 
support of either doctrine are cited, and the arguments, advanced 
by either side, are presented in a clear and concise manner, 
together with the lecturer's own views of the question. In fact, 
every ancient and modern opinion, whether over-ruled, doubted, 
or in any way qualified, is here systematically digested. 

(i) See also article on the Litchfield Law School, Albany Law Journal, 
Vol. XX, (1879). 



LAW PROFESSORSHIPS. 185 

These lectures, thus classified, are taken down in full by the 
students, and after being compared with each other, are generally 
transcribed in a more neat and legible hand. The remainder of 
the day is occupied in examining the authorities cited in support 
of the several rules, and in reading the most approved authors 
upon those branches of the law, which are at the time the subject 
of the lectures. (i) 

These notes, thus written out, when complete, are comprised 
in five large volumes, which constitute books of reference, the 
great advantages of which must be apparent to every one of the 
slightest acquaintance with the comprehensive and abstruse sci- 
ence of the Law. 

The examinations, which are held every Saturday, upon the 
lectures of the preceding week, consist of a thorough investiga- 
tion of the principles of each rule, and not merely of such ques- 
tions as can be answered from memory without any exercise of 
the judgment. These examinations are held by Jabez W. Hunt- 
ington, Esq., a distinguished gentleman of the bar, whose practice 
enables him to introduce frequent and familiar illustrations, 
which create an interest, and serve to impress more strongly upon 
the mind the knowledge acquired during the week. 

There is also connected with this institution, a Moot Court for 
the argument of law questions, at which Judge Gould presides. 
The questions that are discussed, are prepared by him in the 
forms in which they generally arise. These courts are held once 
at least in each week, two students acting as Counsellors, one on 
each side, and the arguments that are advanced, together with 
the opinion of the Judge, are carefully recorded in a book kept 
for that purpose. For the preparation of these questions, access 
may at all times be had to an extensive library. (2) 

Besides these courts, there are societies established for improve- 
ment in forensic exercises, which are entirely under the control 
of the students. 

The whole course is completed in fourteen months, including 
two vacations of four weeks each, one in the spring, the other in 
the autumn. No student can enter for a shorter period than 
three months. The terms of instruction are $100 for the first 
year, and $50 for the second, payable either in advance or at the 
end of the year. 

(1) Those interested in this early law school method may find a col- 
lection of notes of Judge Gould's lectures now in the Harvard Law School 
Library, complete in three manuscript volumes, presented by W. S. An- 
drews of Boston. See Harv. Coll. Arch. Reports, Report of Law Librarian, 
July 12, 1861. 

(2) It is said that the Law Library of Judge Gould was then the largest 
and best in the United States. 



CHAPTER IX. 
OBSTACLES AND PREJUDICES. 

While the American Bar developed great lawyers and great 
judges in the period from 1789 to 1815, there were three obstacles 
to its growth and to the study of law as a science. These 
obstructive factors were: first, the unpopularity of lawyers as a 
class; second, the bitter feeling against England and English 
Common Law ; third, the lack of any distinct body of American 
Law, arising from the non-existence of American law reports 
and law books. 

The services rendered by the legal profession in the defence 
and maintenance of the People's rights and liberties, from the 
middle of the i8th Century to the adoption of the Constitution, 
had been well recognized by the People in making a choice of 
their representatives ; for of the 56 signers of the Declaration of 
Independence, 25 were lawyers; and of the 55 members of the 
Federal Constitutional Convention, 31 were lawyers, of whom 
four had studied in the Inner Temple, and one at Oxford, under 
Blackstone. ( i ) 

Of the First Congress, 10 of the 29 Senators, and 17 of the 
65 Representatives were lawyers. After the Revolution, how- 
ever, the old prejudices and dislike of lawyers again arose in the 
popular mind. Many things contributed to excite this feeling. 

In the first place, a large number of the most eminent and 
older members of the Bar, being Royalists, had either left the 
country, (2) or retired from practice. Thus, Maryland was 
deprived of two of her greatest advocates, Daniel Dulany and 
George Chalmers ; Pennsylvania lost John Galloway ; New York 
lost William Smith Jr., Thomas Barclay, and John Tabor 
Kempe; New Jersey lost Josiah Ogden. In Massachusetts, the 

(1) The Supreme Court of the United States, by Hampton L. Carson. 

(2) See Loyalists of the American Revolution, by Lorenzo Sabine, 
(1864). 

It is to be remembered that in the American Colonies 25,000 Loyalists, at 
the least computation, took up arms for the King. Sabine gives sketches of 
the lives of at least 130 lawyers who left the country as Tories ; and there 
were several hundred other lawyers whose lives were not of sufficient note 
to describe, but who also became refugees. 



OBSTACLES AND PREJUDICES 187 

losses to the Bar from this cause were especially heavy. The 
situation was graphically described in 1824 by William Sullivan, 
from his personal recollections. ( i ) "Thirteen of the Bar" he 
says "were Royalists and left the country; and among them 
Jonathan Sewall, then Attorney General, a man held in high 
esteem for professional talent; and Sampson Salter Blowers, 
who enjoyed an honorable reputation as a lawyer and the esteem 
of many affectionate friends ; Samuel Quincy, Timothy Ruggles, 
and James Putnam. Some who remained were neutral, so far 
as they could be, consistently with safety. The Royalists who 
departed, and those who remained, are not to be censured at this 
day, for conscientious adherence to the mother country. The 
former had little reason to rejoice in the course which they 
adopted. Few received such reward for loyalty as they expected. 
Some exchanged eminence in the Province for appointments, 
such as they were, in the Colonies; and some ease and comfort 
here, for insignificance and obscurity at home. Most of them 
deeply regretted their abandonment of their native land. Such 
effect had the Revolution on the members of the Bar, that the 
list of 1779 comprised only ten barristers, and four attorneys, 
for the whole State, who were such before the Revolution." (2) 

Of the lawyers who remained, many were either actively 
engaged in politics or in the army ; while others had accepted 
positions on the bench. 

This left the practice of the law very largely in the hands of 
lawyers of a lower grade and inferior ability. 

Meanwhile, the social and financial conditions of the country 
after the Revolution tended to produce great unrest. Interrup- 
tion of business by the war, and high prices, had brought about 
embarrassment in all classes, and an inability to meet their 
debts. Great Britain, in closing her ports by navigation laws and 
prohibitory duties, had deprived the American industries of 
employment. Public debts were enormous, necessitating ruinous 
taxation. The Federal Government owed to its soldiers large 
sums, and payment in the paper money of the time was farcical. 
The Tories whose estates had been confiscated were returning and 

(1) Address to Suffolk County Bar in March, 1824, by William Sulli- 
van (1825). 

(2) Emory Washburn said that in 1775, when Levi Lincoln (Harvard 
1772) settled in Worcester County, only two lawyers remained in the county, 
the rest having left the country. 

See Mass. Hist. Soc. Proc., Vol. XI, (1869). 



1 88 HARVARD LAW SCHOOL. 

making strenuous efforts to have their property restored. Eng- 
lish creditors were trying to recover their claims, barred by vari- 
ous statutes of confiscation and sequestration. 

The chief law business, therefore, was the collection of debts 
and the enforcement of contracts; and the jails were filled to 
overflowing with men imprisoned for debt under the rigorous 
laws of the times. ( i ) 

Irritated by this excessive litigation, by the increase of suits 
on debts and mortgage foreclosures, and by the system of fees 
and court costs established by the Bar Associations, the people 
at large mistook effects for cause ; and attributed all their evils 
to the existence of lawyers in the community. Thus, in the con- 
servative little town of Braintree, close to Boston, the citizens in 
town meeting, in 1786, and voted that: "We humbly request 
that there may be such laws compiled as may crush or at least put 
a proper check or restraint on that order of Gentlemen denomi- 
nated Lawyers, the completion of whose modern conduct appears 
to us to tend rather to the destruction than the preservation 
of the town. "(2) 

Other communities who were more radical, and demanded the 
complete abolition of the legal profession. 

Such was the popular discontent arising from all these condi- 
tions, that, in Massachusetts, an open rebellion broke out, in 1787 
(the well known Shays Rebellion), directed largely against the 
courts and the lawyers, and requiring to be put down by military 
force. (3) 
As McMaster says (4) : 

The lawyers were overwhelmed with cases. The courts could 



(1) In the little rural county of Worcester, Massachusetts, having a 
population of less than 5,000, there were at one time more than 2000 ac- 
tions on the docket of the Inferior Court of Common Pleas. 

See for an excellent account of the condition of affairs at this time, from 
a lawyer's standpoint, the Life of James Sullivan, by T. G. Amory. 

(2) Three Episodes of Massachusetts History, by Charles Francis 
Adams. See also Remarks of Charles Francis Adams, in Proceedings of 
The American Antiquarian Society (October, 1902). 

(3) It is curious to note that the sentiment of the Massachusetts Bai 
was, in turn, so aroused by the popular feeling against it, that two of its 
distinguished anti-Federalist members, James Sullivan (afterwards At- 
torney General and Governor of Massachusetts) and Levi Lincoln (after- 
wards Attorney General of the United States), who undertook the defence 
of four of the ringleaders of the Shays Rebellion, on their trial for treason, 
were bitterly attacked for this action by their associates of the Massachu- 
setts Bar, most of whom were Federalists. 

(4) History of the United States, by James B. McMaster, Vol. I. 



OBSTACLES AND PREJUDICES. 189 

not try half that came to them. For every man who had an old 
debt, a mortgage, or a claim against a Tory or Refugee, hastened 
to have it adjusted. While, therefore, everyone else was idle, 
the lawyers were busy ; and as they always exacted a retainer, 
and were sure to obtain their fees, grew rich fast. Every young 
man became an attorney, and every attorney did well. Such 
prosperity soon marked them as fit subjects for the discontented 
to vent their anger on. They were denounced as banditti, as 
blood suckers, as pickpockets, as windbags, as smooth tongued 
rogues. Those who having no cases, had little cause to complain 
of the lawyers, murmured that it was a gross outrage to tax them 
to pay for the sittings of courts into which they had never 
brought and never would bring an action. . . The mere 
sight of a lawyer . . . was enough to call forth an oath or 
a muttered curse from the louts who hung around the tavern. 

McRee, in his Life of James Iredell, thus describes conditions 
in South Carolina(i): 

The return of the Tories, and their strenuous efforts to pro- 
cure the restoration of their property, the activity of the lawyers, 
stimulated by the opening of a lucrative career ; the commence- 
ment of new, the revival of long dormant suits all conspired to 
foster exasperation, cupidity, avarice, revenge. ... A very 
violent prejudice, at this period, existed in narrow and vulgar 
minds against the legal profession. This antipathy was fer- 
mented by many persons of more talent and less principle as a 
means of destroying those whom they feared as rivals, and as 
an instrument by which they might effect their political ends. 
The lawyers of the State were generally conservatives ; hence it 
was that they excited, in addition to other cause, the animosity of 
the radicals ; and in a signal degree the hatred of those who may 
be distinctively and exclusively characterized as demagogues 
charlteans and political tricksters. 

The Letters of an American Farmer, written in 1787, by H. St. 
John Crevecoeur, also express the sentiment of the time : 

Lawyers are plants that will grow in any soil that is cultivated 
by the hands of others and when once they have taken root they 
will extinguish every vegetable that grows around them. The 
fortune they daily acquire in every province from the misfortunes 
of their fellow citizens, are surprising. The most ignorant, the 
most bungling member of that profession will, if placed in the 
most obscure part of the country, promote litigiousness and 
amass more wealth than the most opulent farmer with all his 



(i) Life and Times of James Iredell, by Griffith J. McRee. 



190 HARVARD LAW SCHOOL. 

toil. . . . What a pity that our forefathers who happily 
extinguished so many fatal customs and expunged from their 
new government so many errors and abuses both religious and 
civil, did not also prevent the introduction of a set of men so 
dangerous. . . . The value of our laws and the spirit of 
freedom which often tends to make us litigious must necessarily 
throw the greatest part of the property of the Colonies into the 
hands of these gentlemen. In another century the law will pos- 
sess in the North what now the church possesses in Peru and 
Mexico. 

Much the same conditions prevailed in all the States. In New 
Hampshire, and in Vermont, there were the same widespread 
outcries that the courts should be abolished, that the number of 
lawyers was too large, that the profession should be entirely sup- 
pressed, that their fees should be cut down, that the payment of 
debts and the foreclosure of mortgages should be postponed by 
"Stay Acts", until debtors could pay. There were numerous 
riots. The debtors of Vermont set fire to their court houses; 
those of New Jersey nailed up their doors. Lawyers were mob- 
bed in the streets, and judges threatened. 

In Rhode Island, an act providing for payment of debts in 
paper money was held unconstitutional, in 1786, in the famous 
case of Trevett v. Weeden; whereupon the Legislature passed 
an act prohibiting lawyers from practising unless they took the 
Test oath, agreeing to take paper money at par. 

When the great debates were going on in the various State 
conventions, in 1787-89, regarding the adoption of the Constitu- 
tion, much of the opposition of the anti-Constitution men, or Anti- 
Federalists as they were later called, was due to the fact that the 
proposed Constitution "was the work of lawyers". Thus, in the 
Massachusetts Convention, "Not a member from the country dis- 
tricts got up without indulging in harsh words about lawyers and 
judges", says McMaster. " 'The lawyers and men of learning 
and moneyed men that talk so finely', said one delegate, 'expect 
to get into Congress. They mean to be managers of the Consti- 
tution. They mean to get all the money into their hands and 
then they will swallow up us little folk.' "(i) 

For nearly thirty years after the Revolution, constant efforts 
were made in many States to mitigate the evil of lawyers by 



( 'i) See Elliot's Debates on the Constitution. 
McMaster's History of the United States, Vol. I. 



OBSTACLES AND PREJUDICES. 191 

abolishing the system of bar-call and fees established by courts 
or Bar Associations. 

In Massachusetts, acts were passed, in 1785 and 1786, 
authorizing parties to a suit to argue their own causes in court 
and forbidding the employment of more than two lawyers by 
either party. Plans for law reform were urged even by prominent 
members of the Bar, such as John Gardiner(i) to the dis- 
quiet however of most of their fellow members. Through Gard- 
iner's influence, resolutions were introduced into the Legislature, 
in 1790, to investigate "the present state of the law and its Pro- 
fessors in the Commonwealth." A statute was enacted author- 
izing parties to empower under seal any person whom they chose, 
whether regular attorney or not, to manage their causes. 

Perhaps the most powerful attacks on the "dangerous" and 
"pernicious" "order" of lawyers and their "malpractices, delays, 
and extravagant fees" were the letters of Benjamin Austin, an 
able pamphleteer and Anti-Federalist politician of Boston, who 
wrote, in 1786, under the name of "Honestus", and whose letters 
had a widespread influence: 

The distresses of the people are now great, but if we examine 
particularly we shall find them owing in a great measure to the 
conduct of some practitioners of law. . . . Why this inter- 
vening order? The law and evidence are all the essentials 
required, and are not the judges with the jury competent for 
these purposes? . 

The question is whether we will have this order so far estab- 
lished in this Commonwealth as to rule over us. ... The 
order is becoming continually more and more powerful. 
There is danger of lawyers becoming formidable as a combined 
body. The people should be guarded against it as it might 
subvert every principle of law and establish a perfect aristoc- 
racy. 

The remedies he proposed were (a) an American code of law; 
(b) parties to appear in person or by any friend whether attorney 



(i) John Gardiner was born in Boston in 1731, and removed to Eng- 
land, where he studied law and was called as a barrister at the Inner Tem- 
ple. He became an intimate acquaintance of Lord Mansfield, appeared as 
junior counsel for the defendant in the famous John Wilkes case, and also 
for Beardmore and Meredith, two of the publishers indicted with Wilkes. 
He removed to the Island of Saint Christopher, where he became Attorney 
General; thence he came to Boston in 1783. 



1 92 HARVARD LAW SCHOOL. 

or not; (c) referees, to take the place of courts; (d) a State 
advocate general, to appear for all persons indicted. ( i ) 

The situation in Massachusetts was described by John Quincy 
Adams, when a Senior in College, in 1787, as follows (2) : 

At a time when the profession of the law is laboring under 
the heavy weight of popular indignation ; when it is upbraided 
as the original cause of all the evils with which the Common- 
wealth is distressed ; when the Legislature have been pub- 
licly exhorted by a popular writer to abolish it entirely, and 
when the mere title of lawyer is sufficient to deprive a man of 
the public confidence, it should seem this profession would afford 
but a poor subject for panegyric; but its real ability is not to 
be determined by the short lived frenzy of an inconsiderate 
multitude nor by the artful misrepresentations of an insidious 
writer. 

And further in a letter to his mother, in December, 1787: 

The popular odium which has been excited against the prac- 
titioners in this Commonwealth prevails to so great a degree 
that the most innocent and irreproachable life cannot guard a 
lawyer against the hatred of his fellow citizens. The very 
despicable writings of Honestus were just calculated to kindle 
a flame which will subsist long after they are forgotten . . A 
thousand lies in addition to these published in the papers have 
been spread all over the country to prejudice the people against 
the "order," as it has invidiously been called ; and as a free peo- 
ple will not descend to disguise their sentiments, the gentlemen 
of the profession have been treated with contemptuous neglect 
and with insulting abuse. Yet notwithstanding all this, the 
profession is rapidly increasing in numbers, and the little busi- 
ness to be done is divided into so many shares that they are in 
danger of starving one another; when I consider the disadvant- 
ages which are in a degree peculiar to the present time ... I con- 
fess I am sometimes almost discouraged and ready to wish I 
had engaged in some other line of life. 

Even as late as 1803-1806, the public dissatisfaction, in Penn- 
sylvania, against the legal profession and the judicial system 
generally, culminated in a series of statutes, which, in the langu- 
age of an old lawyer of that State, "betray a more anxious than 



(1) See Observations on The Pernicious Practice of the Law by Hon- 
estus (Benjamin Austin) as Published occasionally in the Independence 
Chronicle in Boston in 1786, (1819). 

(2) Diary of John Ouincy Adams Mass. Hist. Soc. Proc., 2nd Series, 
Vol. XVI (1902). 



OBSTACLES AND PREJUDICES. 193 

wise desire to make every man his own lawyer . . . Then the 
common law was looked on with jealousy and the profession 
of the law regarded with distrust."(i) 

These statutes provided an elaborate machinery by which a 
party having a claim or debt might file a statement in court, the 
other party might file an answer in informal shape and there- 
upon the case should proceed to judgment without the inter- 
vention of counsel. 

An interesting reference to the state of affairs is found in 
a letter of Charles Jared Ingersoll of Philadelphia, in Decem- 
ber, 1803(2) : 

i 

I am jogging on my professional path. My father nudges 
me along, and the Governor has given me a publick room 
adjoining the court, where I have established my desk and 
arm-chair. . . . Our State rulers threaten to lop away that 
excresence on civilization, the bar ; and Counsellor Ingersoll de- 
clares he'll go to New York. All the eminent lawyers have 
their eyes on one city or another, to remove to in case of ex- 
tremes. 

In Virginia, as late as 1816, Thomas Jefferson, writing to 
Benjamin Austin, of Massachusetts, referred to the popular 
sentiment towards the profession (3) : 

Your favor of Dec. 21 has been received and I am first to 
thank you for the pamphlet it covered. The same description 
of persons which is the subject of that is so much multiplied 
here as to be almost a grievance and by their numbers in the 
public courts have wrested from the public hand the direction 
of the pruning knife. But with us as a body they are republi- 
can and mostly moderate in their views; so far therefore less 
objects of jealousy than with you. 

Parallel with this animosity against lawyers as a class was 
the prejudice against the system of English Common Law on 
which the courts based their decisions a prejudice felt, not 
only by many intelligent as well as unintelligent laymen, but 
also by many American lawyers themselves. 

After the Revolution, there had been much discussion in the 
courts as to the extent to which the Common Law of England 



(1) Discourse before the Laiv Academy, by R. McCall (1838). 

(2) Life of Charles Jared Ingersoll, by William M. Meigs. 

(3) Writings of Thomas Jefferson, Vol. X. 
13 



I 9 4 HARVARD LAW SCHOOL. 

was binding. Some States had expressly adopted, in their Con- 
stitutions, such parts of the Common Law as formed the law 
of the Colonies prior to 1775 or 1776 or to the date of the State 
Constitution New York, New Jersey, Delaware, Maryland, 
Rhode Island, New Hampshire. In other States there had been 
much feeling of uneasiness until some authoritative declaration 
should be made.(i) 

All parties, of course, agreed that English law, since the Rev- 
olution, had no binding force whatever ; but many of the Anti- 
Federalists claimed that the English law prior to the Revolu- 
tion, had no force in the United States except and by virtue of 
these express Constitutions and statutes. 

They sought to entirely eliminate English law from the United 
States ; and their position is well stated in a letter of Jefferson 
to John Tyler, Judge of the United States District Court in 
Virginia, written in 1812(2) : 

I deride with you the ordinary doctrine that we brought with 
us from England the Common Law rights. This narrow notion 
was a favorite in the first moment of rallying to our rights 
against Great Britain. But it was that of men who felt their 
rights before they had thought of their explanation. The truth 
is that we brought with us the rights of men. On our arrival 
here, the question would at once arise, by what law will we 
govern ourselves. The resolution seems to have been, by that 
system with which we are familiar, to be altered by ourselves 
occasionally and adapted to our new situation . . . The state of 
the English law at the date of our emigration, consituted the 
system adopted here. We may doubt, therefore, the propriety 
of quoting in our courts English authorities subsequent to that 
adoption, still more the admission of authorities posterior to 
the Declaration of Independence, or rather to the accession of 
that King whose reign ab initio was that very tissue of wrongs 
which rendered the Declaration at length necessary . . . This rela- 
tion to the beginning of his reign would add the advantage of 
getting us rid of all Mansfield's innovations. 

Tyler himself, when Governor of Virgina, in a message to 
the Legislature, had spoken of 

the unfortunate practice of quoting lengthy and numerous Brit- 

(1) The Adoption of the Common Law by the American Colonies, 
Amcr. Law Register, Vol. XXI (1882). 

As to how far the Common Law has been adopted in the various States, 
see Amer. and Eng. Encyl. of Law, 2nd Ed.. Vol. VI. p. 286, note 3. 

(2) Letters and Times of the Tylers, by Lyon G. Tyler, Vol. I, (1884). 



OBSTACLES AND PREJUDICES. 195 

ish cases ; the time of the court being taken up in reconciling 
absurd and contradictory opinions of foreign judges which cer- 
tainly can be no part of an American Judge's duty . . . Shall we 
forever administer our free republican government on the prin- 
ciples of a rigid and high toned monarchy? 

And when he became a Federal judge he used his utmost 
endeavor to eradicate the influence of English law, precedents 
and citations ; and he held that : 

As soon as we had cut asunder the ligatures that bound us 
together as parent and children, the Common Law was done 
away until we saw fit to establish so much of it as did not con- 
travene our republican system. 

It was this same spirit which led the New Hampshire Judges 
of the Supreme Court (1785-1800) to put to rout counsel argu- 
ing before them, by declining to listen to citations from "musty, 
old, worm eaten books/' and by stating that "not Common Law 
not the quirks of Coke and Blackstone but common sense" 
should control their decisions. 

"English authority did not stand very high in these early 
feverish times," wrote James Kent, "and this led me a hundred 
times to bear down opposition or shame it by exhaustive re- 
search and overwhelming authority." It was from this anti- 
English sentiment in New York that at least one lasting and 
invaluable addition to American law was made in the introduc- 
tion by Kent of civil law principles, of which he wrote : 

Between 1799 and 1804, I read Valin and Emerigon and com- 
pletely abridged the latter ... I made much use of the Corpus 
Juris, and as the judges (Livingston excepted) knew nothing 
of French or Civil law I had immense advantage over them. 
I could generally put my brethern to rout and carry my point 
by my mysterious wand of French and civil law. The judges 
were Republicans and very kindly disposed to everything that 
was French and this enabled me without exciting any alarm 
or jealousy to make free use of such authorities and thereby 
enrich our commercial law. 

Many lawyers as well as laymen felt that what was needed 
was a law wholly and strictly American. Thus, wrote Benja- 
min Austin : 

Instead of the numerous codes of British law, we should 
adopt a concise system, calculated upon the plainest principles 
and agreeable to our Republican government. This would ren- 



196 HARVARD LAW SCHOOL. 

der useless hundreds of volumes which only serve to make prac- 
tice mysterious. . . . 

One reason of the pernicious practice of the law and what 
gives great influence to the "order" is that we have introduced 
the whole body of English laws into our courts. Why should 
these States be governed by British laws? Can the monarchical 
and aristocratical institutions of England be consistent with the 
republican principles of our Constitution? . . . We may 
as well adopt the laws of the Medes and Persians . . . The 
numerous precedents brought from "old English authorities" serve 
to embarrass all our judiciary causes and answer no other pur- 
pose than to increase the influence of lawyers. 

Mingled with the antagonism to anything savoring of England 
and monarchy in our law was another factor, the influence of 
which was felt in the decisions of the United States Courts for 
nearly seventy-five years of our early jurisprudence namely, 
the jealousy of the individual States at any infringement by the 
National Government on their State jurisdiction. In the early 
cases brought before the Federal Courts, the doctrine was upheld 
that these Courts were bound by the Common Law of England 
as the National Common Law of this country. 

In 1793, Judges Jay, Wilson, Iredell, and District Judge 
Peters held all violations of treaties were indictable without a 
Federal statute; almost at the same time, before Judges Iredell, 
Wilson and Peters, an American was indicted at Common Law 
for sending threatening letters to the British Minister (i). Then 
came Isaac Williams' case where the same doctrine was held by 
Chief Justice Ellsworth. In 1794, it was also laid down as law 
by Judge Iredell, in a charge to the Grand Jury, on the Southern 
Circuit. 

"Such was the state of the law when Judge Chase, in U. S. 
v. Worrall, (2 Dall), in 1798, (Chief Justice Jay, Judge Wilson 
and Judge Iredell being no longer on the Bench, and Chief Jus- 
tice Ellsworth being abroad), without waiting to learn what had 
been decided by his predecessors, startled both his colleagues 
and the Bar by announcing that he would entertain no indict- 
ments at Common Law. No reports being then or for a long 
time afterwards published, of the prior rulings to the contrary, 
it is not to be wondered that the judges who came on the Bench 



(l) See Hen-Reid's Case in IVharton's State Trials, p. 49; Wharton's 
State Trials, p. 651. See also Federal Common Law in Virginia Laiv Reg- 
ister (1904)- 



OBSTACLES AND PREJUDICES. 197 

after Judge Chase supposed that he stated the practice cor- 
rectly."^) 

This decision, as stated above, caused an immense excitement 
among lawyers, and many protests were made against it by 
those of Federalist politics, who lamented this denial of Com- 
mon Law jurisdiction. Their feeling was expressed, as late as 
1820, by John Quincy Adams in his diary, in his view of the 
life of Samuel Chase(2) : 

I considered Mr. Chase as one of the men whose life, con- 
duct, and opinion had been of the most extensive influence upon 
the Constitution of this country. . . . He himself as a judge 
had settled other (principles) of the highest importance one 
of them in my opinion of very pernicious importance. He de- 
cided, as I think, directly in the face of an amendatory article 
of the Constitution of the United States (the seventh) that the 
Union in its federative capacity has no common law a decision 
which has crippled the powers not only of the judiciary but of 
all the Departments of the National Government. The reasons 
upon which he rested that decision are not sound, but, as they 
flattered the popular prejudices, it has remained unreversed to 
this day. 

Equally strenous, however, were the opponents of such Com- 
mon Law jurisdiction; and Jefferson wrote to Edmund Ran- 
dolph, Aug. 1 8, 1/99(3) : 

Of all the doctrines which have ever been broached by the 
federal government the novel one, of the Common Law being 
in force and cognizable as an existing law in their courts, is 
to me the most formidable. All their other assumptions of 
un-given powers have been in the detail. The bank law, the 
treaty doctrine, the sedition act, the alien act, the undertaking 
to change the state laws of evidence in the state courts by cer- 
tain parts of the stamp act, etc., etc., have been solitary incon- 
sequential timid things in comparison with the audacious bare- 

d) See Wharton's Criminal Law, Vol. I, p. 168. 

P. S. Duponceau wrote in 1824 that: "This decision of Judge Chase 
made a great noise at the time and left vague but strong impressions, the 
more so as he was known to be a man of deep learning and considerable 
strength of mind, and more disposed to extend than to limit power." 

See also Review of Duponceau's Dissertation on the Nature and Extent 
of the Jurisdiction of the Courts of the United States April 22, 1824, by 
Charles G. Davies, in North Amer. Review, Vol. XXI (1825), in which he 
says "The opinion of Judge Chase seems to have been reverenced as a sort 
of pcTpetual edict." 

(2) Diary of John Quincy Adams, Vol. V, Dec. 18, 1820. 

(3) Writings of Thomas Jefferson, Vol. VIII. 



198 HARVARD LAW SCHOOL. 

faced and sweeping pretension to a system of law for the United 
States without the adoption of their legislature, and so infinitely 
beyond their power to adopt. If this assumption be yielded to, 
the state courts may be shut up as there will then be nothing to 
hinder citizens of the same state suing each other in the federal 
courts in every case, as on a bond for instance, because the 
Common Law obliges the payment of it and the Common Law 
they say is their law. 

And on Oct. 29, 1/99, he wrote to Charles Pinckney: 

Ellsworth and Iredell have openly recognized it ; Washing- 
ton has squinted at it ; and I have no doubt it has been decided 
to cram it down our throats. In short, it would seem that 
changes in the principles of our government are to be pushed, 
until they accomplish a monarchy peaceably, or force a resist- 
ance, which with the aid of an army may end in monarchy. 
Still I hope that this will be peaceably prevented by the eyes 
of the people being opened and the consequent effect of the elec- 
tive principle. 

In January, 1800. the opposition took the form, in Virginia, 
of an instruction from the General Assembly to its Senators 
and Representatives in Congress "to use their best efforts to 
oppose the passing of any law founded on recognizing the prin- 
ciple lately advanced that the Common Law of England is in 
force under the Government of the United States :" 

The General Assembly of Virginia would consider themselves 
unfaithful to the trust reposed in them were they to remain 
silent, whilst a doctrine has been publicly advanced, novel in its 
principles and tremendous in its consequences : That the Com- 
mon Law of England is in force under the government of the 
United States. It is not at this time proposed to expose at 
large the monstrous pretensions resulting from the adoption of 
this principle. It ought never, however, to be forgotten, and 
can never be too often repeated, that it opens a new tribunal 
for the trial of crimes never contemplated by the federal com- 
pact. It opens a new code of sanguinary criminal law, both 
obsolete and unknown, and either wholly rejected or essentially 
modified in almost all its parts by State institutions. It arrests 
or supersedes State jurisdictions, and innovates upon State laws. 
It subjects the citizens to punishment, according to the judici- 
ary will, when he is left in ignorance of what this law enjoins 
as a duty or prohibits as a crime. It assumes a range of juris- 
diction for the Federal Courts which defies limitation or defini- 
tion. In short, it is believed that the advocates for the prin- 
ciple would themselves be lost in an attempt to apply it to the 



OBSTACLES AND PREJUDICES. 199 

existing institution of Federal and State Courts, by separating 
with precision their judiciary rights, and thus preventing the 
constant and mischievous interference of rival jurisdictions. 

Finally the prejudices of the people crystallized in radical leg- 
islation. In 1799, the State of New Jersey actually passed a 
statute, forbidding the Bar to cite or read in court any decision, 
opinion, treatise, compilation, or exposition of Common Law 
made or written in Great Britain since July I, 17/6, and pre- 
scribed heavy penalties. 

In 1807, the State of Kentucky followed suit with a statute, 
providing that reports and books of decisions in Great Britain 
since July 4, 1776 "shall not be read or considered as authority 
in any of the courts." Under this statute, the court went so 
far r.s to stop Henry Clay from reading from 3 East's Reports 
200 that portion of an opinion of Lord Ellenborough which 
stated the ancient law prior to 1776 (See Hicknwn r. Boffman, 
Hardin's Reports 356). 

In Pennsylvania, the feeling against the Common Law took 
shape, in 1802-1805, in the impeachment trial of the Chief Jus- 
tice and Judges of the Supreme Court, Edward Shippen, Jas- 
per Yeates, and Thomas Smith, charged with a single "arbitrary 
and unconstitutional act," that of sentencing Thomas Passmore 
to jail for 30 days and imposing a $50 fine for a "supposed 
contempt," the ground of the impeachment being that punish- 
ment for contempt of court was a piece of English Common 
Law barbarism, unsuited to this country and illegal. ( i ) 



(i) The Courts from the Revolution to the Revision of the Civil Code, 
by William H. Loyd, Jr., Univ. of Penn. Laiv Review, Vol. LVI (1908). 

In this trial, in which Caesar A. Rodney (later United States Attorney 
General) appeared for the prosecution, and Alexander J. Dallas and Jared 
Ingersoll for the defendants, occurred one of the finest pleas in behalf of 
the Common Law, in the annals of American legal history. 

The following extract from Dallas' argument, as reproduced in his 
slddn-ss to the Republicans of Pennsylvania June, 1805, is well worthy of 
preservation : 

"In depicting the Common Law, they have ransacked the cells of monks; 
they have pillaged the lumber of colleges ; they have revived the follies of 
a superstitious age ; they have brandished the rigors of a military despot- 
ism ; but in all this rage of research they have forgotten or concealed that 
such things enter not into the composition of the common law of Pennsyl- 
vania ; for the Constitution tolerates only that portion of the Common 
Law which your ancestors brought voluntarily with them to the wilderness 
as a birthright. Let us not therefore be ensnared by prejudices nor be de- 
ceived by mere similitude of names. Every nation has its common law. 
The Common Law of Pennsylvania is the Common Law of England, as 
stripped of its feudal trappings, as originally suited to a colonial condition, 



200 HARVARD LAW SCHOOL. 

The result of the trial being the acquittal of the judges, pub- 
lic sentiment against the English law was still further enflamed 
in Pennsylvania; and in 1810, a statute was passed (and not 
repealed until 1836), forbidding the citation of any English 
decision made since July 4, 1776, except in cases involving the 
law of nations and maritime law.(i) 

The question of the existence of a national Common Law 
in the criminal jurisdiction of the Federal Courts was finally 
set at rest by the decision, in 1812, in the case of U. S. v. Good- 
win (7 Cranch 32), argued by Attorney General Pinkney for the 
Government, Dana of Connecticut for the defendants declining to 
argue. Judge Johnson gave the opinion, holding that an indict- 
ment for libel on the President could not be sustained without a 
Federal statute on the subject, and stating that: 

Although this question is brought up now for the first time 
to be decided by this court, we consider it as having long since 
been settled in public opinion . . . the general acquiescence of legal 
men shows the prevalence of opinion in favor of the negative 
of the proposition. . . All exercise of criminal jurisdiction in 
common law cases is not within their implied powers. (2) 

Even after this decision a feeling of unrest at the weight 



as modified by acts of the General Assembly, and as purified by the prin- 
ciples of the Constitution. For the varying exigencies of social life, for 
the complicated interests of an enterprising nation, the positive acts of the 
Legislature can provide little, and, independent of the Common Law, rights 
would remain forever without remedies and wrongs without address. The 
law of nations, the law of merchants, the customs and usages of trade, 
and eveii the law of every foreign country in relation to transitory con- 
tracts originating there but prosecuted here, are parts of the common law 
of Pennsylvania. It is the Common Law, generally speaking, not an Act 
of Assembly that assures the title and the possession of your farms and 
your houses, and protects your persons, your liberty, your reputation, from 
violence ; that defines and punishes offences ; that regulates the trial by 
jury; and that gives efficacy to the fundamental principles of the Consti- 
tution simply because it originated in Europe cannot afford a better rea- 
son to abandon it, than to renounce the English or German languages, or 
to abolish the institutions of property and marriage, of education and re- 
ligion, since they were too derived from the more ancient civilized nation 
of the world." 

See Life of Alexander J. Dallas, by George M. Dallas, (1871). 

(1) Henry H. Brackenridge, then Judge of the Supreme Court of 
Pennsylvania said in his Law Miscellanies (1814), that this act ought to be 
repealed, and he questioned its constitutionality, "as abridging the right of 
the judiciary to hear all reason on a question before them." 

(2) See U. S. v. Coolidge, i Gallison 488, in 1813, in which Judge Story 
attempted to make a distinction between power to indict and power to pun- 
ish. Judge John Davis dissenting, the case was taken to the Supreme 
Court on a division of opinion; but the Supreme Court refused (i Whea- 
ton 415), in 1816, to hear an argument on the point. 



OBSTACLES AND PREJUDICES. 201 

given to the English Common Law by the courts cropped up 
through the country; and an excellent description of this con- 
dition was given by Peter S. DuPonceau, Provost of the Law 
Academy of Philadelphia, in an address to the students, as late 
as 1824(1) : 

Various circumstances have concurred after the Revolution 
to create doubts in the public mind respecting the operation of 
the Common Law in this country as a national system, particu- 
larly in criminal cases. The bitter feeling of animosity against 
England which the revolutionary war produced was not amongst 
the least of these causes. . . 

. . . . I am well aware that this doctrine of the nation- 
ality of the Common Law will meet with many opponents. 
There is a spirit of hostility abroad against this system which 
cannot escape the eye of the most superficial observer. It began 
in Virginia, in the year 1799 or 1800, in consequence of an 
opposition to the alien and sedition acts ; a committee of the 
legislative body made a report against these laws which was 
accepted by the House, in which it w r as broadly laid down that 
the Common Law is not the law of the United States. Not 
long afterwards, the flame caught in Pennsylvania; and it was 
for a time believed that the Legislature would abolish the Com- 
mon Law altogether. Violent pamphlets were published to in- 
stigate them to that measure. The whole, however, ended in 
a law for determining all suits by arbitration in the first instance, 
at the will of either party, and another prohibiting the read- 
ing and quoting in courts of justice of British authorities of a 
date posterior to the Revolution. (2) 

It was not long before this inimical disposition towards the 
Common Law made its way into the State of Ohio. In the 
year 1819, a learned and elaborate work was published in that 
State (3) in which it was endeavored to prove not only that 

(1) See A Dissertation on the nature and extent of the Jurisdiction of 
the Courts of the United States, being a valedictory address to the students 
of the Law Academy of Philadelphia, April 23, 1824, by Peter S. Dupon- 
ceau, Provost of the Academy. 

Tucker's Blackstone Vol. I, App. E. ; Kent's Commentaries, Vol. I, p. 
311; RaiL'le on the Constitution, Chap. 30; North American Review, July 
1825; Speech of Bayard, in Debates on the Judiciary, in 1802, p. 372; 
Story's Commentaries on the Constitution, Vol. I, s. 158 . 

Federal Common Law, Virginia Low Register, Vol. X (1904). Whar- 
ton's Criminal Law, Vol. I. 

(2) This spirit was considerably checked by a well written pamphlet 
published at the time by Joseph Hopkinson. Esq. of Philadelphia, in which 
he demonstrated the absurdity of the project of abolishing the Common 
Law. 

(3) Historical sketches of the principles and maxims of American Jur- 
isprudence, in contrast with the doctrines of the English common law on 
the subject of crimes and punishments, by Milton Goodnow, (Steubenvale, 
1819). 



202 HARVARD LAW SCHOOL. 

the Common Law was not the law of the United States, but that 
it had no authority in any of the States that had been formed 
out of the old Northwestern Territory. But few copies of his 
work have been printed; nevertheless, as it is learnedly and 
elaborately written, it cannot but have had a considerable degree 
of influence. In other States, attacks upon the Common Law, 
more or less direct, have appeared from time to time. Its faults 
are laid hold of and exhibited in the most glaring light; its 
ancient abuses, its uncertainty, the immense number of volumes 
in which its doctrines are to be sought for, . . . and above all the 
supposed danger to our institutions from its being still the law 
of a monarchical country, the opinions of whose judges long 
habit has taught us to respect, which opinions are received from 
year to year and admitted in our courts of justice if not as rules, 
at least as guides for their decisions ; these are the topics which 
are in general selected for animadversion. 



CHAPTER X. 

EARLY AMERICAN LAW BOOKS. 

It has been seen in the preceding chapter how general was the 
feeling that the law in the United States should be emancipated 
from its dependence on English decisions. Conditions of 
life, of commerce, of real estate dealings, and of court practice 
were essentially different in the United States from those in 
England ; and a distinct body of law was demanded for this 
country. To supply this demand there arose the body of Ameri- 
can law reporters and law writers. 

James Sullivan, of Massachusetts, well expressed this general 
sentiment of those who felt that the country should have a 
genuine American system of law based on American cases, in his 
preface to his work on Land Titles, in 1801 : 

. The want of accurate reports necessary to evince what statutes 
and principles of the English Laws had been adopted, used, and 
practised upon before the Revolution is very discouraging in this 
work. ... It would be well for us to have our own com- 
ments, and to reject those of other governments which have been 
issued since we became an independent nation. . . . We 
ought to have our own reporters, compilers anl compositors. 
Everyone who will attempt something in this way ought to be 
encouraged by the public. 

There have been motions in some of the legislatures in the 
Union to prohibit the reading of English reports in our courts 
of justice. . . . The judges themselves in several of the 
States have with great propriety inclined to reject the reports of 
cases determined by England since the American Revolution. 
These motions, however crude and undigested they may have 
been, no doubt had their origin in a strong love to our national 
independence. And the motive is therefore a laudable rather than 
a reprehensible one. 

And, as Cranch said in the preface to his Supreme Court Reports, 
in 1804: 

Much of that uncertainty of the law, which is so frequently 
and perhaps so justly the subject of complaint in this country, 



204 HARVARD LAW SCHOOL. 

may be attributed to the want of American reports. Many of 
the causes, which are the subject of litigation in our courts, arise 
upon circumstances peculiar to our situation and laws, and little 
information can be derived from English authorities to lead to a 
correct decision. 

But before a body of American Law could be established, there 
was need of some authoritative method of preserving the deci- 
sions of the courts, in order that the judges might have some 
means of knowing what the American precedents were. 

As a reviewer of one of the early volumes of American reports 
stated(i) : 

The United States have, until within a few years, trusted to 
traditions the reasons of their judicial decisions. But with wealth 
and commerce, and with more enlarged views of jurisprudence, 
it became obvious that the exposition of our statutes and the 
validity of our customs should rest upon a more secure basis 
than the memory of man or the silent influence of unquestioned 
usage. 

An accurate view of the state of the law, resulting from the 
absence of recorded decisions, was given by John Duer, a con- 
temporary of Kent, in describing the condition of New York 
courts before the era of law reports (2) : 

The decisions . . . were not the fruit of that careful and 
laborious investigation which is essential to the proper discharge 
of the judicial functions; and the authority they might otherwise 
have claimed was greatly impaired by these frequent differences 
of opinion that are the necessary result of imperfect examination 
and study. It was seldom that the opinions of the judges, even 
in the most important cases, were reduced to writing; and as 
no reports were then published, and no records preserved of the 
grounds on which their decisions were placed, the cases were 
numerous in which they had no rules to direct, no precedents to 
govern them. Of this state of things, the inevitable conse- 
quences were vacillation, contradictions, confusion, and uncer- 
tainty. . . . This defective administration of the law had a 
most unfavorable influence on the character and pursuits of the 
Bar; for when cases are slightly examined and rashly decided 
by the judges, the principal motives for a diligent preparation on 
the part of counsel cease to exist. 



(1) Review of Vol. I. of Tyng's Massachusetts Reports, quoted in 
Hall's American Law Journal, Vol. I (1808). 

(2) Discourse before the Bar of New York, by John Duer (1848). 



EARLY LAW BOOKS. 205 

And as a writer in the North American Review said, in 1825 ( I ) : 

The practice of reporting decisions with their grounds and 
reasons is indeed an insuperable barrier to the corruption of 
judges; and it is the strongest possible guard against negligent 
and inconsiderate decrees. . . . The publication of reports 
again affords the only means of informing the community of the 
laws by which their conduct is to be governed and their rights 
to be determined. 

To the State of Connecticut is due the credit of making the first 
move towards the establishment of a record of American Law, by 
the passage, through the efforts of two of its great lawyers, Roger 
Sherman and Richard Law, of a statute, in 1785, requiring the 
judges of the Supreme and Superior Courts to file written opin- 
ions, in disposing of cases on points of law, so that they might be 
properly reported, and "thereby a foundation laid for a more per- 
fect and permanent system of common law in this State." 

This statute made possible the first regular printed law 
reports in America (2) ; for in 1789, Ephraim Kirby. a country 
printer at Litchfield, formerly a student at Yale, and a soldier in 
the Continental Army, made the first collection of cases, and 
published the volume known as Kirby s Reports, in the preface 
to which he says : 

The uncertainty and contradiction attending the judicial deci- 
sions in this State have long been subjects of complaint. The 
source of this complaint is easily discovered. When our ances- 
tors emigrated here, they brought with them the notions of juris- 
prudence which prevailed in the country from whence they came. 
The riches, luxury, and extensive commerce of that country, con- 
trasted with the equal distribution of property, simplicity of man- 
ners, and agricultural habits and employments of this, rendered 
a deviation from the English laws, in many instances, highly 

(1) Review of Pickering's Reports Vol. I., by Willard Phillips, North 
Amcr. Rev., Vol. XX (1825). 

(2) While Kirby was the first American Law Reporter, in the legal 
use of the term, he was not the first person to publish reports of cases, 
for throughout the i8th Century printed reports of famous criminal trials 
were to be found, and an occasional printed account of a civil action. (See 
Chapter VI supra.) 

Neither does Kirby s Reports contain the earliest American cases; for 
Harris and McHcnry's Reports published in 1809 contains cases of a date 
as early as 1658; Quincy's Reports (Massachusetts), published in 1865 has 
cases from 1761-1772; and in 1829, there was published at Charlottesville, 
Virginia, a book by Thomas Jefferson entitled Reports of cases determined 
in the General Court of Virginia from 1730 to 1740 and from 1768 to 1772. 
(See Forgotten Chapters in the Life of Jefferson, in Green Bag, Vol. VIII.) 



2o6 HARVARD LAW SCHOOL. 

necessary. This was observed ; and the intricate and prolix 
practice of the English courts was rejected, and a mode of prac- 
tice more simple, and better accommodated to an easy and speedy 
administration of justice, adopted. Our courts were still in a 
state of embarrassment, sensible that the common law of Eng- 
land, 'though a highly improved system,' was not fully applica- 
ble to our situation ; but no provision being made to preserve and 
publish proper histories of their adjudications, every attempt of 
the judges to run the line of distinction between what was 
applicable and what was not proved abortive, for the principles 
of their decisions were soon forgot, or misunderstood, or errone- 
ously reported from memory. Hence arose a confusion in the 
determination of our courts. The rules of property became uncer- 
tain, and litigation proportionably increased. 

In this situation, some legislative exertion was found necessary ; 
and in the year 1785 an act passed, requiring the judges of 
the superior court to render written reasons for their decisions 
in cases \vhere the pleadings closed in an issue at law. This was 
a great advance towards improvement. Still it left the business 
of reformation but half performed ; for the arguments of the 
judges, without a history of the whole case, would not always 
be intelligible, and they would become known to but few persons, 
and, being written on loose papers, were exposed to be mislaid, 
and soon sink into total oblivion. 

Hence it became obvious to every one that should histories of 
important cases be carefully taken and published, in which the 
whole process should appear, showing the true grounds and prin- 
ciples of the decision, it would in time produce a permanent sys- 
tem of common law. 

Alexander J. Dallas followed Kirby, the next year 1790, with 
his first volume of decisions of Pennsylvania cases dating from 
1754, of which Lord Mansfield wrote to Chief Justice McKean 
of Pennsylvania, in 1791 : "They do credit to the court, the bar, 
and the reporter ; they show readiness in practice, liberality in 
principle, strong reason and legal learning." Hopkinson's Admir- 
alty Reports were printed in 1792. Chipman's Reports came 
next in Vermont in 1793. Chancellor Wythe published his Cases 
in 1795 a volume particularly interesting from the fact that 
Henry Clay, a lad of fifteen, then a poor assistant in the Clerk's 
office, was picked out by Wythe to write out and record his deci- 
sions for this work, and in the copies of these reports sent to 
Jefferson, John Adams, and Samuel Adams are notes in Eng- 
lish and Greek written by Clay at Wythe's dictation. 

Martin's Reports in North Carolina followed, in 1797; Root's, 
in Connecticut, and Washington's, in Virginia, in 1798; and Hay- 



EARLY LAW BOOKS. 207 

tvood's, in North Carolina, in 1799; Addison's, in Pennsylvania, in 
1800; Call's, in Virginia, in 1801 ; Taylor's, in North Carolina, 
in 1802; Hughes', in Kentucky, in 1803: Bay's, in South Caro- 
lina, in 1804; Pennington's, in New Jersey, in 1807; Harris and 
McHenry's in Maryland, and Tyler's, in Vermont, in 1809: Har- 
din's. in Kentucky, in 1810; Martins, in Louisiana, in 1811; 
Overtoil's, in Tennessee, in 1813; and New Hampshire Reports, 
in 1816. 

The first reports in New York (Caines) were not printed until 
1804 ; and it was Kent who introduced in New York the system 
of filing written opinions, as he writes : 

When I came to the bench, in 1798, there were no reports or 
state precedents. The opinions from the bench were delivered 
ore tenus. We had no law of our own and nobody knew what 
it was. I first introduced a thorough examination of cases and 
written opinions. In Jan. 1799, the second case reported in I 
Johnson of Litdlozv v. Dale is a sample of the earliest. . . . 
This was the commencement of a new plan and there was laid 
the first stone in the subsequently erected temple of our jurispru- 
dence. . . . In 1814 I was appointed Chancellor. The office 
I took with considerable reluctance. It is a curious fact that, 
for the nine years I was in that office, there was not a single deci- 
sion, opinion or dictum of either of my predecessors Livingston 
or Lansing from 1777 to 1814 cited to me or even suggested. 

It was six years after Kent began his written opinions, before 
the Legislature provided (in 1804) for a regular Reporter on a 
salary William Johnson being the first to be appointed. 

In the same year, Massachusetts established the office of 
Reporter and initiated the publication of reports, intended at first 
as an experiment, for the statute was limited in its operation to 
three years. Ephraim Williams was made Reporter, and his first 
volume was published in 1806. 

The first volume of United Supreme Court reports was pub- 
lished by Dallas in 1798 (2 Dallas) ; and in 1804, Cranch began 
the publication of his reports, containing the first of Chief Justice 
Marshall's opinions. 

The American law text book, like the American law report, 
owed its origin largely to the demand for the creation of a 
native body of law distinct from the English law.(i) 

(i) The compilation of books described in these pages has been made 
largely from the large and comprehensive Legal Bibliography, published at 
Philadelphia in 1846, by James G. Marvin a student at the Harvard Law 
School 1842-1846. In his preface he says: 

"With regard to the law books of the United States, I trust this volume 



208 HARVARD LAW SCHOOL. 

The need arose first in the department of Pleading, and was 
well expressed in the preface to the first American collection of 
forms, published at Salem, Mass., in 1801, entitled American 
Precedents of Declarations (i) : 

The motives which induce this publication after the laboured 
books of entries which, under the sanction of Coke, Rastall, Lilly, 
Mallory and Raymond, have received the approbation of the pro- 
fession, become particularly necessary to be developed. The 
redundances of the English forms, however proper in their 
courts, where remuneration is proportionate to literal labour, 
have ever been the subjects of complaint among our own lawyers 
who have been obliged at a vast expense of time and money to 
purchase researches into ponderous volumes where the useful 
matter was buried amid heaps of antiquated learning and super- 
fluous detail. This end has indeed been most severely felt in New 
England, where juridicial practice, though bottomed on the prin- 
ciples of the Common Law, from the character of the people and 
the peculiarity of the laws assumed a more compact and simple 
form. In addition to this, the structure of our government, so 
materially variant from European sovereignties, as well as domes- 
tic remedies of statutory appointment have created deficiencies 
and changes which no foreign works could meet and no personal 
industry supply. . . . They have been almost wholly tran- 



will be found to contain a tolerably complete list. For this department of 
the work, in addition to the resources afforded by the ample library of 
the Dane Law School, gentlemen in various states have kindly rendered 
me material assistance. 

Through the politeness of the Hon. Edward Everett, President of Har- 
vard University, and Dr. Harris, Librarian of the same, the free use of the 
college library of this venerable seat of learning has been granted to me 
and I should do injustice to my feelings did I not here acknowledge the 
indispensable aid derived by this favour. The very liberal manner in which 
the use of books is granted at this University the admirable order and 
condition in which they are kept and the conveniences for consulting them 
are worthy of imitation, and will be fully appreciated by those who have 
had occasion to make researches at other libraries where quite a different 
regime prevails." 

A practically complete list may also be found in the summaries of the law 
of the various States contained in the Annual Law Register, Vols. Ill and 
IV, published by William Griffiths, at Burlington, New Jersey, in 1822 a 
most valuable source of information regarding legal conditions of the early 
part of the iQth Century. 

(i) Judge Iredell of the United States Supreme Court left unfinished 
at his death, in 1798, a legal treatise entitled An Essay on Pleading in Suits 
at Common Law, consisting of four volumes folio, 1229 pages of closely 
written manuscript also 365 pages of Doctrine of the Laws of England 
Concerning Real Property so far as it is in use or in force in the State of 
North Carolina; also 12 chapters of 275 pages of an Appendix to the Law 
of Evidence, a work originally published by an anonymous writer in 1777^ 

See Life and Letters of James Iredell, by Griffith J. McRee, Vol. II 
(i857). 



EARLY LAW BOOKS. 209 

scribed from manuscript forms which have been preserved with 
veneration and collected with fidelity by the first ornaments of 
the bench and forum in our own and adjacent states. By the 
offers of celebrated living counsel, the work has been perfected 
in many valuable forms, which have either received judicial deci- 
sions or been approved by unquestionable authority. 

In the same year, 1801, Thomas Harris published at Annapolis, 
Md., Modern Entries, adapted to the American Courts of Justice, 
being a complete system of approved precedents. 

Four years later, in 1805, Joseph Story, then only twenty-six 
years of age, published at Salem his A Selection of Pleadings in 
Civil Cases, of which J. G. Marvin, the author of Legal Bibliog- 
raphy, said, in 1847 : 

The appearance of the volume was opportune and serviceable to 
the Profession in this country, who had hitherto been obliged 
to resort to the voluminous books of English Entries for prece- 
dents. The notes and references show attainments in the service 
of special pleading at the early age in which this his first attempt 
at legal authorship was published. 'The work gave a new impulse 
to study in this department of professional learning.' 

In 1810, John Anthon published, at New York, the second edi- 
tion of American Precedents of Declarations collected chiefly 
from the manuscript of Chief Justice Parsons and other accom- 
plished Pleaders in the State of Massachusetts. 

In 1806, Colinson Read of Philadelphia published American 
Pleaders' Assistant; and in 1811, W. W. Hening of Virginia 
published his American Pleader, in New York. 

Although the early reports were largely filled with cases involv- 
ing real property, the text books in use on that subject were 
mainly English. 

In 1768, however, John Adams had written anonymously the 
first American book on this branch of the law, An Essay on 
Feudal and Common Law, first published in London, in 1768, 
but not until 1783 in this country, in Philadelphia. ( I ) 



(i) Its authorship was ascribed to Jeremiah Gridley, but a few per- 
sons knew its real author as the following letter from Rev. Dr. Chauncey 
to Rev. Dr. Stiles Dec. 12, 1768, shows: 

"He is but a young man not above 33 or 34 but of incomparable sense, a 
true son of liberty and as well able to write or talk upon it as any one I 
am acquainted with. I esteem that piece one of the best that has been 
written. It has done honor to its author; and it is a pity but he should 
be known." See Mass. Hist. Coll., ist Series, Vol. X, p. 187. 
14 



-2io HARVARD LAW SCHOOL. 

In 1794, William Wyche published in New York,(i) An Essay 
on the Theory and Practice of Fines; and in 1801, James Sulli- 
van of Massachusetts published in Boston the first really com- 
prehensive work on real estate law, entitled Land Titles in Massa- 
chusetts. 

In 1808, John Kilty of Maryland published his Landholders' 
Assistant and Land Office Guide. In 1810, W. Graydon of 
Pennsylvania published Forms of Conveyancing and Practise. In 
1816, Benjamin Lynde Oliver published his Practical Conveyanc- 
ing, which long remained a standard work. 

The important part which admiralty and maritime cases played 
in the courts in the thirty years, 1785-1815, is reflected in a 
remarkable degree in the number of translations made by Ameri- 
man lawyers of the works of foreign writers on maritime, admir- 
alty, civil, and international law. These translations displayed 
considerable legal scholarship, and proved the lawyers of this 
country to be largely in advance of their English brethren, who, 
in general, took little interest in anything outside of the Com- 
mon Law of England. Thus in 1795, William Cobbett published 
in Philadelphia his translation of Marten's Law of Nations A 
translation of Burlamaqui was published in 1792, in Boston. In 
1802, Francis Xavier Martin published at Newbern, North Caro- 
lina, a translation of Pothicr on Contracts; and in 1806, W. D. 
Evans published the same work, in Philadelphia. 

In 1800, Montesquieu's Esprit des Lois was published in Bos- 
ton ; and in 1802, in Philadelphia. In 1805, Vattel was published, 
in Boston. 

In 1806, Asuni was translated and published by William John- 
son, in New York. In 1809, J. R. Ingersoll translated Roccus. 

In 1808, John E. Hall published, at Baltimore, his translation 
of Clerke's Praxis, with notes on American Admiralty Practice; 
and in 1811, his translation of Emerigon's Maritime Loans. 

In 1810, P. S. Du Ponceau, of Philadelphia, translated Bynk- 
ershoek's Laws of War. In 1812, Thomas Cooper published in 
Philadelphia a translation of Justinian's Institutes. In 1809 
John E. Hall of Baltimore wrote a treatise on Admirality Prac- 
tice; and in the same year William J. Duane wrote his Law of 
Nations (Phila. 1809). In 1815, Henry Wheaton wrote his able 



(i) See Modern Law of Real Property, Columbia Law Review, Vol. 
I, (1901). 



EARLY LAW BOOKS. 211 

book on Maritime Captures and Prises. In 1818, William Frick 
of Baltimore translated Jacobsen's, Laws of the Sea. 

Four general works on the Common Law, written in this period, 
showed genuine scientific thought and research ; and have 
remained of more or less permanent value in American legal lit- 
erature. In 1793, Nathaniel Chipman, Chief Justice of Vermont, 
published his Dissertations. In 1804, the lectures delivered before 
the students of the College of Philadelphia by James Wilson, 
Judge of the U. S. Supreme Court, were printed. In the year 
prior, St. George Tucker, Professor of Law, published his famous 
edition of Blackstone, in five volumes (following the 9th English 
edition of 1783), which work, under the title of Tucker's Black- 
stone had widespread circulation, both as a text-book and other- 
wise, giving to him the sobriquet of the "American Black- 
stone", and containing the first legal commentaries on the Fed- 
eral Constitution which appeared in the United States. 

In 1814, Judge H. N. Brackenridge, of Pennsylvania, wrote 
his Law Miscellanies containing Introduction to the Study of the 
Law, Notes on Blackstone' s Commentaries, Strictures on decisions 
of the Supreme Court of the United States with some law cases. 

In 1795-6, Zephaniah Swift published his System of the Laivs 
of Connecticut, a keen, scientific work of much more than local 
interest. 

There were a few scattered treatises on special subjects, but 
they were of little scientific or permanent value. Thus in 1796 
John F. Grimke of South Carolina published his Law of Execu- 
tors; in 1 80 1, Thomas Cooper wrote a manual on The Bank- 
rupt Law of America (Phil. 1801). In 1803, Francis Xavier 
Martin published in North Carolina a short treatise on the 
Powers and Duties of Executors and Administrators; and in 
the same year, Samuel Freeman at Boston, his Probate Direc- 
tory. A Treatise on Criminal Law was published by H. Toul- 
man and James Blair, at Frankfort, Ky., in 1804. 

In 1808, James Bradly published, in New York, a Treatise on 
the Law of Distress. In 1810, Zephaniah Swift, of Connecticut, 
published the first American Digest of the Law of Evidence and 
also a Treatise on Bills of Exchange and Promissory Notes. In 
1811, Samuel Livermore, of New Orleans, who at his death 
bequeathed his large library to Harvard College, wrote the first 
American work on Principal and Agent and Sale by Auction. 



212 HARVARD LAW SCHOOL. 

In the same year, Thomas Sergeant, of Philadelphia, published a 
treatise on Foreign Attachment. In 1816, Judge Tapping Reeve, 
of the Litchfield Law School, published at New Haven, his work 
on the Domestic Relations. 

The greater proportion, however, of the American law books 
consisted of mere manuals for town officers, Justices of the 
Peace, and other petty officers books of ephemeral value. (i) 

There were also a number of other makeshift, "handy books 
for lawyers" such as The Attorneys Fade Mecum, and Client's 
Instructor by John Morgan (published originally in Dublin in 
1787) and reprinted in the United States and much used by the 
profession (2) ; Joshua Montefiore's American Trader's Con- 
pcndium (Phil. 1811) and Commercial Dictionary (Phil. 1804), 
and a compilation called Lex Mercatoria Americana (N. Y. 
1802). 

For the most part, however, lawyers still continued to rely on 
important English text books and English editions of the law 
reports. A movement now began however towards republish- 
ing and re-editing English works ; and in this movement Joseph 
Story became a leader editing Chitty on Bills and Notes in 1809; 
Abbott on Shipping, in 1810, and Lawes on Pleading in Assump- 
sit, in i8il.(3) 

(1) See James Parker's Conductor Generalis (N. Y. 1787); John F. 
Grimke's Justices of the Peace (So. Car. 1796) ; Francis X. Martin's Office 
of Justice of the Peace (N. C. 1791), Jurisdiction of Justices of the Peace 
in Civil Suits (N. C. 1796), and Pozvers and Duties of Sheriff (N. C. 
1806) ; Ewing's Justice of Peace (N. J. 1805) ; Samuel Freeman's The 
Town Officer (Boston 1799, 1815), and the Massachusetts Justice (Boston 
1802, 1810) ; Justices and Constables Assistant by W. Graydon (Phil. 
1805) ; R. Bache's Manual of Pennsylvania Justices of the Peace (Phil. 
1810, 1814) ; C. Reade's Precedents in office of Justice of Peace and Short 
system of Conveyancing (Phil. 1810) ; Samuel Whiting's Connecticut Town 
Officer (1814); The Civil Officer (Boston 1809, 1814); John Tappan's 
County and Town Officers of New York (Kingston, N. Y. 1816) ; W. W. 
Hening's The Virginia Justice (Virg. 1811) ; Rodolphus Dickinson's 
Pozvers of Sheriff (Mass. 1810) ; Jonathan Leavitt's Poor Law 
of Massachusetts (Mass. 1810) ; Probate Directory (Mass. 1812); Over- 
seers Guide (Mass. 1815). 

(2) Termed by Judge Morton in Whiting v. Smith, 13 Pick. 364, in 
1832, "A Practical work of respectable authority." 

(3) Among the more prominent English text books thus republished 
in America were Jones on Bailments (London 1781; Boston 1796)) Kyd 
on Bills and Notes (London 1795, Boston 1798) ; Park on Insurance (Bos- 
ton 1800); Burn on Marine Insurance (N. Y. 1801); Marshall on Insur- 
ance (Boston 1805; Phil. 1810) ; Sullivan's Lectures on The Feudal Law 
and the Constitution- and Law of England (London 1776; Portland, 
Maine, 1805) ; Runnington on Ejectment (N. Y. 1806) ; Ballantine on Law 
of Limitations (London, 1810, N. Y. 1812, containing 71 decisions of Amer- 
ican Law) ; IVoodfall on Landlord and Tenant (N. Y. 1816). 



EARLY LAW BOOKS. 213 

Perhaps the best illustration of the condition of the times in 
this respect may be found in the fact that in the library of The- 
ophilus Parsons the great Chief Justice of Massachusetts, which 
was sold at auction June 2, 1814, the only American law books, 
out of the whole 282, were the following : Liver-more on Agents 
and Factors (Boston 1811) ; Lawes on Pleading vvith Joseph 
Story's Addition (Boston 1811) ; Story's Pleading (1805) ; Laws 
of the United States (10 Vols.) ; Laws of Massachusetts; Laws 
of Nezv Hampshire; C ranch's Reports (6 Vols.) ; Dallas' Reports 
(4 Vols.) ; Day's Reports (3 Vols.) ; Johnson's Reports (8 
Vols.) ; Journal of Congress (13 Vols.) ; and Digest of Massa- 
chusetts Laiv (1809). 

In 1807, John E. Hall of Baltimore announced to the legal 
profession his intention to publish a legal periodical, in order to 
make the decided cases more quickly accessible to the Bar and 
more widely spread. 

The first publication of this kind ever printed had been in 
existence only five years, since 1803, The Law Journal, edited in 
England by John Morgan and Thomas Walter Williams. And 
in January, 1808, appeared the first number of the American 
Latv Journal and Miscellaneous Repository, printed for Hall at 
Philadelphia. Six volumes were issued between 1808 to 1810 and 
1813 to 1817. A review of its first volume in the Boston Anthol- 
ogy for June 1809 says: 

We agree with the editor in his opinion of the importance of 
such a work as he has undertaken, and we believe the public voice 
approves the execution. 

Our country is composed of seventeen different communities, 
each enjoying independent Legislatures, each governed by laws, 
many of whose provisions, both statute and traditional are very 
different. A publication like Mr. Hall's seems therefore abso- 
lutely necessary to afford information to an inhabitant of this 
State in the prosecution of his rights in New York, Maryland, 
or Carolina. It will also afford much assistance in producing uni- 
formity in our decisions on commercial questions which would 
be so beneficial to the whole community . . . and must be 
considered by the politician as one of the surest bonds of the 
federal union. 

Two volumes of a law magazine called the North Carolina 
Law Repository were published in 1813. 

The first distinct Law Library was founded by Philadelphia 



214 HARVARD LAW SCHOOL. 

lawyers, who incorporated a Society for that purpose in March 
1802, described by John Samuel, in an address on the opening 
of the Law Library of the Law Association of Philadelphia, 
March 3, 1898, as follows : "So far as I, after some research 
have been able to discover, this was the first law library estab- 
lished in the United States, the Social Law Library of Boston, 
the next oldest, not being formed until two years later in 1804. 
The oldest law library in New York is that of the New York 
State Library at Albany founded in 1818. (i) A claim was set 
up to the establishment of the Kennebec Law Library in Augusta, 
Maine, as having been founded in 1800, but after inquiry I am 
convinced that no evidence can be adduced in support of this 
claim. In 1805 was published the first catalogue of the books of 
the Law Library Company of the City of Philadelphia. It was 
prepared by William Rawle, and I believe, was the first printed 
catalogue of a law library published in the United States. It is 
a modest booklet of eleven duodecimo pages, containing 249 titles 
of 375 volumes, whose character is curiously suggestive. Nearly 
all the books are reports of cases; and of the small remainder, 
the large majority are books on practice and treatises on com- 
mercial law and maritime insurance ; but one digest, Comyn's and 
not over a dozen text books. Of the reports, all are English save 
three Dallas' (Pennsylvania), Cainc's (New York), and Tay- 
lor's (North Carolina) Reports." 

(i) In the Life of Charles J. Ingersoll, by W. M. Meigs (1897), refer- 
ence is made to a movement for a law library in Washington, in a letter 
written by Ingersoll to R. Rush. 

"Feb. 14, 1823, The Bar had a meeting to-day at which Mr. Wirt pre- 
sided and Messrs. Clay Harper and Winder were appointed a committee to 
devise means of procuring law library of which the want is deplorable here 
(Washington) and also of obtaining if practicable an establishment in 
which all the lawyers attending the Supreme Court may be accommodated 
with lodgings together which would be a convenience, I dare say." 



CHAPTER XL 
THE BAR AND THE LAW, 1789-1815. 

With the year 1789, American Law, as a national system, 
began; and its early history falls, naturally, into two periods, 
the one closing in 1801, with the appointment of Chief Justice 
Marshall, the other with the end of the War of 1812, in 1815. 

On September 24, 1789, President Washington approved the 
great Judiciary Act, which established the judicial system of the 
Federal Government, and which was framed by Oliver Ellsworth 
chiefly. ( I ) On the same day, Washington sent to the Senate, as 
his nominees to the first United States Supreme Court : for 
Chief Justice, John Jay of New York, and for Associate Justices, 
John Rutledge of South Carolina, James Wilson of Pennsyl- 
vania, William Gushing of Massachusetts (then Chief Justice of 
that State), Robert H. Harrison of Maryland, and John Blair of 
Virginia. Harrison declining, in order to accept the position of 
Chancellor of Maryland, James Iredell of North Carolina took 
his place. 

The Court was opened in New York Feb. 2, 1/90; and the next 
day, three lawyers were admitted to practice before it as counsel- 
lors, Elias Boudinot of New Jersey, Thomas Hartley of Penn- 
sylvania, and Richard Harrison of New York. By rule of Court, 
(amended in 1801) an attorney or counsellor who had practised 
as such in the Supreme Court of any State for three years, might 
be admitted to practise ; but he was required to make his election 



(i) It is interesting to note the adverse contemporary comments made 
on this act. Thus, August 2, 1791, the great North Carolina lawyer, Wil- 
liam R. Davie, wrote to Judge James Iredell : 

"I sincerely hope something will be done at the next session of Con- 
gress with the Judiciary Act ; it is so defective in point of arrangement, 
and so obscurely drawn or expressed, that, in my opinion, it would dis- 
grace the composition of the meanest legislature of the states. The At- 
torney General's Report is a type of it an elegant piece of unmeaning ob- 
scurity." 

Samuel Dexter in his argument, in 1816, in Martin v. Hunter's Lessee, 
i Wheat, p. 305, said : "That great man and those who advised him im- 
providently assented to a law (the Judiciary Act) which is neither consti- 
tutionally nor politically adapted to enforce the power of the National 
Courts in an amicable and pacific manner." 



216 HARVARD LAW SCHOOL. 

between the two degrees and could not practise both as coun- 
sellor and as attorney. 

By the Judiciary Act, three Circuit Courts and thirteen District 
Courts were established. There being no business ready before 
the Supreme Court, its judges entered at once upon their duties 
in the inferior courts, the first Circuit Court being held in the 
Eastern Circuit, in New York, April 3, 1790, by Chief Justice 
Jay, Judge Gushing and District Judge Duane. 

A contemporary account of the opening of the Circuit Court at 
New Haven, April 22, 1790, is given by President Stiles as fol- 
lows^) : 

The federal circuit Supreme Court of the United States sat 
here for the first time since its institution by Congress. Present, 
3 Judges, Hon. Ch. Just, Jay, late Ambassador to France, Judge 
Gushing, and Judge Law. The Ch. Justice sent the Marshall to 
me this morning to open the court with Prayer ; but I was unable 
to go abroad and Dr. Dana prayed with the court. Then Mr. 
Jay made a speech to the Grand Jury: all the Attornies of two 
years' standing present were then admitted and Sworn Barristers, 
Attorneys and Counsellors of the Supreme Court. 

It is interesting to note that in at least one of the United 
States Circuit Courts (the First), rules of court provided for 
four degrees at the Bar attorneys, counsellors, barristers, and 
sergeants. The latter degree was a distinct innovation in the 
United States, existing hitherto only in the Colony and State of 
New Jersey. To qualify as an attorney in the Circuit Court, an 
applicant must have been either a college graduate who had 
studied law in the office of an attorney or counsellor of the court 
for three years (four years if a non-graduate), or admitted to 
practice in the State court for one year. After two years' prac- 
tice in the Circuit Court as attorney, he was eligible for admit- 
tance as counsellor. Counsellors "of six years' standing in prac- 
tice" might be "called by the court to the degree of Barrister, and 
after ten years' standing in practice to the degree of Sergeant at 
Law." 

The conferring of these latter degrees was of rare occurrence, 
the most notable instance being the order made by Judge Story in 
1812, as follows: 



(i) Literary Diary of Ezra Stiles, Vol. III. 



THE BAR 1789-1815. 217 

Whereas the court have a full knowledge of the learning, integ- 
rity and ability of the Hon. Jeremiah Smith and the Hon. Jere- 
miah Mason and upon the most entire confidence therein and 
being willing to express this opinion in the most public manner as 
well as a testimony to their merits as also a laudable example to 
the junior members of the Bar; and the court having taken the 
premises into their mature deliberation of their own mere motion 
and pleasure, have ordered and do hereby order that the hon- 
orable degree of sergeant-at-law be and hereby is conferred upon 
them. . . . 

The court on mature deliberation do order that the degree of 
barrister at law be and hereby is conferred on the following 
gentlemen Oliver Peabody, Daniel Humphreys, George Sulli- 
van and Daniel Webster, esquires ; in testimony of the entire 
respect the court entertains for their learning, integrity and abil- 
ity. 

As there were practically no early cases for the Supreme Court, 
only five cases being heard up to the February Term of 1793, this 
Circuit Court work remained for some time the chief occupation 
of the Judges a very arduous work in those days, owing to the 
difficulties of interstate communication "the life of a Postboy" 
so Iredell described it. (i) At first, the judges were divided into 
pairs, and each assigned to one Circuit permanently. As the 
Southern Circuit involved a journey of at least 1900 miles from 
Philadelphia and return, to be covered twice a year, it is no 
wonder that Iredell, to whom it was assigned, should write to 
Jay, Feb. n, 1791, "I will venture to say, no judge can consci- 
entiously undertake to ride the Southern Circuit constantly and 
perform the other parts of his duty," nor that Jay should reply 
March 16, 1791, "The Circuits press hard upon us all; and your 
share of the task has hitherto been more than in due proportion." 
Later the Circuits were changed annually, the judges taking 
them in turn. 

A unique function of the new Supreme Court Justices, (since 



(i) After the Circuits were annually changed, Judge Cushing's travels 
on circuit are thus described : 

"He travelled over the whole Union, holding courts in Virginia, the 
Carolinas and Georgia. His travelling equipage was a four-wheeled phae- 
ton, drawn by a pair of horses which he drove. It was remarkable for it's 
many ingenious arrangements (all of his contrivance), for carrying books, 
choice groceries, and other comforts. Mrs. Gushing always accompanied 
him, and generally read aloud while riding. His faithful servant, Prince, a 
jet-black negro, whose parents had been slaves in the family, and who loved 
his master with unbounded affection, followed." 

Lives of the Chief Justices, by Henry Flanders. 



218 HARVARD LAW SCHOOL. 

largely discontinued) was the instruction in the elementary prin- 
ciples of law, which they were supposed to lay down in charg- 
ing the Grand Jury at the opening of each Circuit Court. In 
the unsettled state of the law during the early days of the new 
Government, these charges to the Grand Jury, published in the 
newspapers, had immense influence upon the people at large. (i) 
Credit for the formation of our early Federal law, however, 
should not be given entirely to the new courts ; for on the first 
Attorney General of the United States, Edmund Randolph of 
Virginia, fell a large part of the burden. He had not only to 
create an office, but to adapt the whole judiciary apparatus of 
the country to its work. The organizing Judiciary Act of 1789, 
drawn by Ellsworth, was still to be tested by experience ; and 
there had been sufficient friction after a year's experience to 
cause the House of Representatives to request its revision by 
Randolph, whose training, as the son and grandson of two Royal 
Attorney Generals, and whose practice as the first Attorney Gen- 
eral of the new State of Virginia, pre-eminently fitted him for 
the task. 

During the first eleven years, the Supreme Court decided only 
55 cases; but two of these, however, were of highest import- 
ance. The first, Chisholm v. Georgia (2 Dallas 419), in 1793, 
in which the Court upheld the right of an individual to sue a 
State, emphasized the sovereignty of the new United States 
over one of its members ; but at the same time nearly caused a 
disruption of the young nation owing to the outburst of re- 
sentment at the decision, coming from those who had opposed 
the Constitution as an infringement on States' Rights. It was 
argued by Edmund Randolph for the plaintiff, and a remons- 
trance was filed by Jared Ingersoll and Alexander J. Dallas 
for the State of Georgia, which declined to formally appear. (2) 

( i ) See the report in the United States Oracle of the Day, a Ports- 
mouth, N. H., newspaper, May 24, 1800, of the opening by Judge Patterson 
of the first United States Circuit Court in that place. 

"After the jury were empanelled, the Judge delivered a most elegant and 
appropriate charge. The law was laid down in a masterly manner. Poli- 
tics were set in their true light, by holding up the Jacobins as the disor- 
ganizers of our happy country, and the only instruments of introducing dis- 
content and dissatisfaction among the well-meaning part of the Community. 
Religion and Morality were pleasingly inculcated and enforced, as being 
necessary to good government, good order and good laws; for 'when the 
righteous are in authority, the people rejoice.' '' Green Bag, Vol. II. 

(2) See Life of Patrick Henry, by William Wirt (1817). Georgia as 
a Litigant, Georgia Bar Assn. Proc., Vol. XIII. Letters and Times of the 
Tylers, by Leon G. Tyler. 



THE BAR 1789-1815. 219 

The other Ware v. Hylton (3 Dallas 199), the famous Brit- 
ish Debts case in 1796, involved a question of immense pecuni- 
ary importance; namely, whether the State laws, confiscating 
and sequestrating debts due to a hostile enemy, or allowing their 
payment in depreciated money, were valid against the provisions 
of the Treaty with England. In Virginia alone, it was estimated 
that there were more than $2,000,000 of such debts; and on the 
decision of this case hung the fortunes of thousands of Ameri- 
can citizens. The question had been originally argued, in 1791, 
in Jones v. Walker (2 Paine 688), in the Federal Circuit Court 
in Virginia, before Judges Johnson and Blair of the Supreme 
Court, and District Judge Griffin, and again, in 1793, before 
Chief Justice Jay and Judge Iredell Ronald, Baker, Starke, and 
John Wickham, of the Virginia Bar appearing for the British 
creditors, and Patrick Henry, Alexander Campbell, and Attorney 
General Innis of Virginia, for the debtors. Of these counsel, 
Judge Iredell in his opinion, said: 

The cause has been spoken to at the Bar, with a degree of 
ability equal to any occasion. However painfully I may reflect 
at any time on the inadequacy of my own talents, I shall, as 
long as I live, remember with pleasure and respect, the argu- 
ments which I have heard in this case. They have discovered 
an ingenuity, a depth of investigation, and a power of reason- 
ing, fully equal to anything I have ever witnessed, and some of 
them have been adorned with a splendor of eloquence surpass- 
ing what I have ever felt before. Fatigue has given way under 
its influence and the heart has warmed, while the understanding 
has been instructed. 

In the Supreme Court, the case was argued by Edmund Tilgh- 
man and William Lewis, of Philadelphia for the creditors, and 
John Marshall and Campbell for the debtors, the latter losing 
their case, and the court holding a treaty to be supreme over 
State law. ( i ) 

Two other cases in the Supreme Court during this period 
deserve mention. 

One, Hylton v. United States (3 Dallas 171), in 1796, was of 
interest because of the fact that though relied on largely in the 
great Income Tax cases in 1894(2) it was undoubtedly a fic- 



(1) For graphic description of this case and its argument see The 
Supreme Court of the United States, by Hampton L. Carson (1891). 

(2) Pollock i'. Farmers Loan and Trust Co., 158 U. S. 601. 



220 HARVARD LAW SCHOOL. 

titious case, based on a false statement of fact. It involved the 
Federal tax on carriages, and the record states : 

Parties, waiving the right of trial by jury, mutually submit- 
ted the controversy to the court, on a case, which stated "that 
the defendant, on the 5th of June, 1794 . . . .owned possessed and 
kept 125 chariots for the conveyance of persons, and no more; 
that the chariots were kept exclusively for the defendant's own 
private use, and not let out to hire." 

The case is also noteworthy as being the only case ever argued 
before the United States Supreme Court by Alexander Hamil- 
ton. Associated with Hamilton was Charles Lee, United States 
Attorney General, and opposed to him were Alexander Camp- 
bell, United States District Attorney for Virginia and Jared 
Ingersoll, Attorney General of Pennsylvania. 

Of Hamilton's argument, Judge Iredell wrote, Feb. 26, 
1796(1): 

The day before yesterday Mr. Hamilton spoke in our court 
attended by the most crowded audience I ever saw there, both 
Houses of Congress being almost deserted on the occasion. 
Though he was in very ill health he spoke with astonishing abil- 
ity, and in a most pleasing manner, and was listened to with the 
profoundest attention. His speech lasted about three hours. 

The other case Georgia z r . Brailsford (3 Dallas i), in 1792, 
argued by Jared Ingersoll and Alexander J. Dallas, against Wil- 
liam Bradford, Edward Tilghman and William Lewis is of inter- 
est as one of the very few cases in which a special trial by jury 
has ever been had in the United States Supreme Court. 

As the Supreme Court sat in the City Hall in Philadelphia 
from 1791 to 1801, the chief practitioners appearing before it 
were naturally the brilliant members of the Philadelphia Bar, 
then the ablest in the country "the eloquent Dallas, the accom- 
plished Rawle, the rough and rugged Lewis, the elder Tilghman, 
and the elder Ingersoll the former strong-pointed and logical, 
the latter a perfect dragnet in the law"(2). Few lawyers ap- 



(1) Life and Letters of James Iredell, by Griffith J. McRee, Vol. II 
(1857). 

(2) The Supreme Court of the United States, by Hampton L. Carson 
(1891). 

As to these Pennsylvania lawyers, see further Chapter IV supra. 



THE BAR 1789-1815. 221 

peared from other States; the chief ones being Samuel Dexter, 
from Massachusetts ; James Reed and John Julian Pringle from 
South Carolina; Jeremiah B. Howell(i), and Ashur Robbins(2), 
from Rhode Island; James Hillhouse(3), from Connecticut; 
Josiah Ogden Hoffman, from New York; John Thompson Ma- 
son (4), from Maryland; James A. Bayard (5), from Delaware; 
and Charles Lee (6) and those previously named, from Vir- 
gina. 

Such was the Supreme Court Bar. "During this period/' 
says Kent, "the Federal Courts were chiefly occupied with ques- 
tions concerning their admiralty jurisdiction, and with political 
and national questions arising out of the Revolutionary war, 
and the dangerous influence and action of the war of the French 
Revolution upon the neutrality and peace of our country the 
principles of expatriation, of ex post facto laws, of constitu- 
tional taxes." 

In these eleven years, the Court suffered many changes. In 
1791 Rutledge resigned to become Chancellor of South Caro- 
lina. (7) In 1795 Jay resigned, as Chief Justice, to become Gov- 
ernor of New York. Ellsworth, who was appointed Chief Jus- 
tice, in 1796, resigned in 1800 because of ill health. (8) 



(1) Born in 1772, Brown 1789, U. S. Senator 1810. 

(2) Born in 1757, Yale 1782, U. S. Dist. Atty. 1795, U. S. Senator 
1825. 

(3) Born in 1754, Yale 1773, U. S. Senator 1796. 

(4) Born in 1764, offered the position of U. S. Atty. Gen. by President 
Jefferson and by President Madison, but declined. 

(5) Born in 1767, Princeton 1789, studied with Jared Ingersoll and 
Joseph Reed. 

(6) Born in 1758, studied with Jared Ingersoll, U. S. Atty. Gen. 1795- 
1801. 

(7) Rutledge was appointed Chief Justice, on Jay's resignation, and 
presided over the Court during the August Term of 1795; but the Senate 
rejected his nomination. 

William Gushing was appointed, but declined. 

(8) Ellsworth, during his term as Chief Justice, served as Envoy Ex- 
traordinary and Minister Plenipotentiary to France, 1799-1800. At this 
time, he visited England and was present at the trial of the famous case 
of Rex v. Waddington, i East in which Mr. Law (Lord Ellenborough) 
Mr. Erskine, Mr. Garrow and Mr. Scott (Lord Eldon) were counsel. 
Wharton in his notes to American State Trials thus describes the scene in 
Westminster Hall : 

"Notwithstanding Mr. Jay's previous appearance at the Court of St. 
James, and the contemporaneous appearance there of Mr. Rufus King, the 
fame of their accomplishments had not reached the King's Bench, whose 
precincts they had probably never invaded ; and it was consequently with 
great curiosity that the elder lawyers, whose notions of America had been 
derived from the kidnapping cases which were the only precipitate cast on 
the reports of the Privy Council by the current of Colonial litigation, spied 



222 HARVARD LAW SCHOOL. 

Iredell and Wilson died in 1798. Samuel Chase, of Mary- 
land, became a Justice, in 1796, in place of John Blair (resigned), 
and William Paterson, of New Jersey, became a Justice, in 
1793, in place of Thomas Johnson, who took Rutledge's place, 
in 1791 ; Alfred Moore, of North Carolina, became a Justice, 
in 1799; and Bushrod Washington, of Virginia, in 1798. 

As late as 1800, Jay, in declining re-appointment, stated that 
he "left the bench, perfectly convinced that under a system so 
defective, it could not obtain the energy, weight and dignity, 
which were essential to its affording due support to the national 
government; nor acquire the public confidence and respect, 
which, as the last resort of the justice of the nation, it should 
possess." 

And the difficult situation in which the Court was placed in 
these early years was well depicted by Caleb Cushing, writing 
in 1824(1) : 

To say that the Supreme Court of the United States was 
forced to contend with all the prejudices and misconceptions 
which cast a cloud around the dawning of our national consti- 
tution is far short of the reality ; for its duties brought it directly 
in conflict with those prejudices and misconceptions in their worst 
and most aggravated shapes. As entrusted with the execution 
of the laws, it was necessarily thrust forward to bear the brunt 
in the first instance, of all the opposition levelled against the 
federal head ; to enforce the collection of revenue ; to punish riots 
which the pressure of odious taxes had excited ; to quell disaf- 
fections maddened and enflamed into insurrection by popular 
clamor; to maintain the neutrality of the nation in spite of the 
usurpations of foreign armaments, consuls, ministers and di- 
rectories ; to compel obedience to commercial restrictions 
of which they on whom they fell most heavily, would 
not acknowledge the utility, efficiency or expediency; to with- 
stand the pretensions of individual States to independent sov- 
ereignty; in short to guarantee the integrity of our constitution 
wherever that instrument opposed the feelings or combatted the 
claims of constituent members of the union. 



out the American Chief Justice. Mr. Ellsworth's simple but dignified car- 
riage was in happy contrast to the awkwardness of the English Chief 
Justice (Kenyon) ; and as soon as it was discovered that, though his worn 
and marked features bore a stamp which had not then become familiar to 
the English eye, he was neither an Indian nor a Jacobin ... he was 
surrounded by a knot of lawyers, curious to know how the common law 
stood transplanting." 

(i) Review of Law Reports, by Caleb Cushing, North Amer. Rev., Vol. 
XVIII (1824). 



THE BAR 1789-1815. 223 

John Adams, however, in the closing days of his adminis- 
tration, placed the Supreme court at one stroke upon the pin- 
nacle which it has ever since held, by his appointment of John 
Marshall on January 31, 1801, Chief Justice a man "born," 
said William Pinkney, "to be the Chief Justice of any country 
into which Providence should have cast him."(i) 

With the installation of Marshall, the Court moved to Wash- 
ington, and sat in the room which now serves as the law library 
of Congress. 

During the first fifteen years of the igth Century, the Fed- 
eral Bar consisted largely of Virginia, Maryland and Pennsyl- 
vania lawyers, a fact hardly surprising, in view of the difficul- 
ties of access to Washington, and habitation there. 

"Washington, in 1800, was regarded as a fever stricken morass. 
The half finished White House stood in a naked field, overlook- 
ing the Potomac, with two awkward Department buildings near 
it, a single row of brick houses and a few isolated dwellings 
within sight and nothing more ; until across a swamp, a mile 
and a half away, the shapeless, unfinished capitol was seen, two 
wings without a body. . . . Discontented men clustered to- 
gether in eight or ten boarding houses, as near as possible to 
the capitol. "(2) 

As late as 1808, Sir James Jackson, the British Minister, 
described the city as "five miles long, the scattered houses inter- 
sected with woods, heaths and gravel pits. I put up a covey of 
partridges within three hundred yards of the house of Con- 
gress, yclept the capitol. It is more like Hampstead Heath than 
a city." Of the difficulties of a journey to the city, there are 
many contemporary descriptions. Edmund Quincy writes that 
his mother (wife of Josiah Quincy, President of Harvard Col- 
lege and previously Congressman) "used to describe the dis- 
comforts, and dangers even, of the journeys to Washington 
from Boston, as things to remember to the end of a long life." (3) 



(1) Edward C. Marshall, youngest son of the Chief Justice, writing of 
a visit to John Adams in 1825, said, "He gave me a most cordial reception, 
and, grasping my hand, told me that his gift of Mr. John Marshall to the 
people of the United States was the proudest act of his life." 

(2) History of the United States, by Henry Adams, Vol. I. 

(3) Memoir of Josiah, Quincy, by Edmund Quincy. 

Hon. Elijah H. Mills, of Northampton, the leader of the Western Bar 
in Massachusetts, wrote to his wife from Washington in 1815. (See Mass 
Hist. Soc. Proc., Vol. XIX) : 

"My anticipations were almost infinitely short of the reality, and I can 



224 HARVARD LAW SCHOOL. 

Judge Story wrote to his wife, in 1812: "It will probably take 
me twelve days to reach home after I set out on the journey." 

"Between Boston and New York was a tolerable highway, along 
which, thrice a week, light stage coaches carried passengers and 
mail, in three days. From New York, a stage coach started for 
Philadelphia every week day, consuming the greater part of 
two days, the road between Paulus Hook (now Jersey City) 
and Hackensack, being exceedingly bad. South of Philadelphia 
it was tolerable as far as Baltimore, but beyond Baltimore it 
meandered through forests. Four miles an hour was average 
speed everywhere. Beyond the Potomac the roads were steadily 
worse; and south of Petersburg, even the mails were carried on 
horseback. Except for a stage coach which plied between 
Charleston and Savannah, no public conveyance of any kind 
was mentioned in the three Southernmost States. Of eight rivers 
in the one hundred miles between Monticello and Washington, Jef- 
ferson wrote) in 1801, "five have neither bridges nor boats." Six 
cents a mile was the usual stage fare. The cost of a journey 
from Baltimore to New York was about $2i."(i) 
The journey from Charleston South Carolina, was even more 
of a task, requiring from ten days to three weeks, according to 
the lightness of the vehicle and swiftness of horse, the state 
of the rivers and swamps, or, if one went by Philadelphia packet, 
the fairness of the winds. (2) 

For these reasons, the cases before the Supreme Court were 
as a rule argued by counsel who could make the journey thither 
with the least difficulty. 

Peter S. DuPonceau, of Pennsylvania, thus describes the 
attendance of lawyers from that State: 



truly say that the first appearance of this seat of the national government 
has produced in me nothing but absolute loathing and disgust. . . . 
From Washington to Baltimore we went in the first day. There we took 
passage in a packet for French-Town, in the Chesapeake Bay, and were 
delayed by a dead calm, so that we were twenty-four hours performing a 
passage usually completed in six. On Wednesday, we left our packet and 
went overland to Newcastle. There we again took a packet, and arrived in 
Philadelphia late in the evening. On Thursday, we remained in that 
city, the stage being too full to receive us that day. . . . This morning 
we left it at two o'clock, and ought to have arrived in New York this 
evening. But the excessive badness of the roads has arrested our progress 
at a distance of about forty miles from it. I shall make no stay in New 
York, but shall press my journey with all the rapidity in my power, and 
shall be with you, my dear Harriette, I hope, by the Friday stage." 

(1) History of the United States, by Henry Adams. 

(2) Life of William Lowndes, by Mrs. St. J. Ravenel. 



THE BAR 1789-1815. 225 

The covmsel engaged in those causes were in the habit of 
going together to Washington to argue their cases. These were Mr. 
Ingersoll, Mr. Dallas, Mr. Lewis, Mr. Edward Tilghman, Mr. 
Rawle and myself. We hired a stage to ourselves in which we 
proceeded by easy journies. The court sat then in the month of 
February, so that we had to travel in the depth of winter through 
bad roads in no very comfortable way. Nevertheless, as soon 
as we were out of the city, and felt the flush of air, we were like 
school boys in the playground on a holiday. 

Flashes of wit shot their corruscations on all sides ; puns of 
the genuine Philadelphia stamp were handed about, old college 
stories were revived, songs were sung in short, it might have 
been taken for anything but the grave counsellors of the cele- 
brated bar of Philadelphia except Mr. Ingersoll, who, sad, 
serious and composed, rode thinking of his causes and little 
inclined to mirth. 

Our appearance at the bar of the Supreme Court was always 
a scene of triumph. We entered the hall together, and Judge 
Washington was heard to say, "This is my bar." Our causes 
had a preference over all others, in consideration of the dis- 
tance we had to travel. (i) 

Joseph Story gives the following lively description of the 
Pennsylvania Bar before the Supreme Court in 1808(2) : 

Duponceau is a Frenchman by birth, and a very ingenious coun- 
sellor at Philadelphia. He has the reputation of great subtilty 
and acuteness, and is excessively minute in the display of his 
learning. His manner is animated but not impressive, and he 
betrays at every turn the impatience and the casuistry of his 
nation. His countenance is striking, his figure rather awkward. 
A small, sparkling, black eye, and a thin face, satisfy you that 
he is not without quickness of mind ; yet he seemed to me to 
exhaust himself in petty distinctions, and in a perpetual recur- 
rence to doubtful, if not to inclusive arguments. His reason- 
ing was rather sprightly and plausible, than logical and coercive ; 
in short, he is a French advocate. Tilghman is quite an old 
man, of an unpromising appearance ; his face indicates rather a 
simplicity and weakness of character. Indeed, when I first 
saw him, I could not persuade myself that he possessed any 
talent. I heard his argument, and it was strong, clear, pointed, 
and logical. Though his manner was bad, and his pronouncia- 
tion not agreeable, every person listened with attention, and 
none were disappointed. Rawle is quite a plain but genteel man, 
and looks like a studious, ingenious, and able lawyer. He argues 
with a very pleasant voice, and has great neatness, perspicacity, 



(1) See Letter of P. S. DuPonceau in Penn. Hist. Soc. Coll., Vol. IV. 

(2) Life and Letters of Joseph Story, by W. W. Story (1851). 
15 



226 HARVARD LAW SCHOOL. 

and even elegance. He keeps his object steadily in view; he 
distinguishes with care, enforces with strength, and if he fail 
to convince he seldom spends his thoughts vainly. Ingersoll 
has rather a peculiar face, and yet in person or manner has noth- 
ing which interests in a high degree. He is more animated than 
Rawle, but has less precision; he is learned, laborious, and 
minute, not eloquent, not declamatory, but diffuse. The Penn- 
sylvanians consider him a perfect dragnet, that gathers every- 
thing in its course. Dallas is a book-man, ready, apt, and loqua- 
cious, but artificial. He is of a strong, robust figure, but his 
voice seems shrill and half obstructed. He grows warm by 
method, and cools in the same manner. He wearies with fre- 
quent emphasis on subordinate points, but he cannot be con- 
sidered as unscientific or wandering. Lee, of Virginia, is a 
thin, spare, short man ; you cannot believe that he was attorney 
general of the United States. 

Maryland lawyers were especially distinguished for their knowl- 
edge of the science, and their skill in the practice, of special 
pleading. 

The acknowledged head of the profession in that State during 
this period was Luther Martin, Attorney General of the State 
for many years, a lawyer of great force, of profound learning 
and memory,(i) powerful in argument but often discursive, slip- 
shod, and sometimes inaccurate. The rude vigor, pertinacity, and 
fearless courage of the man made him hated by those whom he 
opposed "an unprincipled, impudent, Federal bull dog." so 
Jefferson called him though beloved by his friends. 

No tribute has ever been paid to a lawyer in the United States 
so remarkable as the action taken by the Maryland Legislature, 
in 1822, in passing a Resolve imposing a license tax on every 
practising attorney, of $5 annually, to be paid to trustees "for the 
use of Luther Martin", he being at the time broken in health and 
in fortune. (2) 



(1) Born in 1748, a Princeton graduate of 1766, admitted to the Bar 
in 1771, Atty. Gen. of Maryland 1778- 1805;' and again in 1818. 

(2) This Resolve of the Legislature of Maryland passed in February 
1822, was as follows: "Resolved that each and every practitioner of law in 
this State shall be and he is hereby compelled . . .to obtain from the 
Clerk of the County Court in which he may practice, a license to authorize 
him so to practice, for which he shall pay annually . . the sum of five 
dollars, which said sum is to be deposited ... in the treasury sub- 
ject to the order of Thomas Hall and William H. Winder, Esquires, who 
are hereby appointed trustees for the application of the proceeds raised by 
virtue of this resolution to the use of Luther Martin . . . and pro- 
vided that this resolution shall cease to be valid at the death of the said 
Luther Martin." 



THE BAR 1789-1815. 227 

Story gives this picture of Martin, before the Supreme Court 
in 1808(2) : 

Shall I turn you to Luther Martin, that singular compound 
of strange qualities? With a professional income of $10,000 a 
year, he is poor and needy; generous and humane, but negli- 
gent and profuse. He labors hard to acquire, and yet cannot 
preserve. Experience, however severe, never corrects a single 
habit. I have heard anecdotes of his improvidence and thought- 
lessness which astonishes me. He is about the middle size, a 
little bald, with a common forehead, pointed nose, inexpressive 
eye, large mouth, and well formed chin. His dress is slovenly. 
You cannot believe him a great man. Nothing in his voice, his 
action, his language impresses. Of all men he is the most desul- 
tory, wandering, and inaccurate. Errors in Grammar, and, indeed, 
an unexampled laxity of speech, mark him everywhere. . . 
But everyone assures me that he is profoundly learned, and that 
though he shines not now in the lustre of his former days, y'et 
he is at times very great. He never seems satisfied with a single 
grasp of his subject; he urges himself to successive efforts, until 
he moulds and fashions it to his purpose. You should 
hear of Luther Martin's fame from those who have known 
him long and intimately, but you should not see him. 

After 1810, another Maryland lawyer William Pinkney 
stepped to the front and until his death, in 1822, remained the 
undisputed head of the American Bar. The comments of his 
contemporaries are interesting. ( i ) "He appears to me," wrote 
Story when a justice of the Supreme Court in 1812, "a man of con- 
summate talents. He seizes his subject with the comprehension 
and vigor of a giant and he breaks forth with a lustre and a 
strength that keep the attention forever on the stretch." Chief 
Justice Marshall stated that he never knew his equal as a rea- 
soner so clear and luminous was his method of argumentation. 

(2) Life and Letters of Joseph Story, by W. W. Story, Vol. I. See 
also Luther Martin, American Law Review, Vol. I ; Luther Martin, by 
Henry P. Goddard, Proc. Maryland Hist. Soc. (1887) ; Luther Martin as a 
Lawyer and Lover, Maryland 'Bar Assn., Vol. IV (1899). 

(i) Born in 1764, studied with Judge Samuel Chase, admitted to prac- 
tise in 1786, U. S. Atty. Gen. 1811-1814, U. S. Senator 1820. William Pink- 
ney, by Henry Flanders, Proc. N. Y. State Bar Assn. (1906). Lives of the 
Chief Justices, by Henry Flanders. Life and Letters of Joseph Story, by 
W. W. Story. Miscellaneous Works, by Joseph Story. Life and Times of 
Roger B. Taney, by Samuel Tyler. Familiar Letters on Public Characters, 
by William Sullivan in which interesting anecdotes are told of Pinkney's 
appearance before the Massachusetts Supreme Court. William Pinkney, by 
Rev. William Pinkney. Life, Writings and Speeches of William Pinkney, 
by Henry Wheaton (1826). Review of Wheaton's Life of Pinkney, North 
Amer. Rev., Vol. XXIV (1826). 



228 HARVARD LAW SCHOOL. 

"Mr. Pinkney was the greatest man I have ever seen in a court 
of justice". 

"He had an oceanic mind", said William Wirt, "he was the 
most thoroughly equipped lawyer I ever met in the courts." 

In manner, Pinkney was a tremendous fop, always wearing 
doe colored kid gloves in arguing before the Supreme Court. His 
preparation of his cases and arguments was elaborate to the 
uttermost degree. He was arrogant, vain, often boisterous. His 
voice was harsh and feeble. "Yet, notwithstanding these defects," 
wrote Judge Story, "such is his strong and cogent logic, his ele- 
gant and perspicuous language, his flowing graces, and rhetorical 
touches, his pointed and persevering arguments that he enchants, 
interests, and almost irresistibly leads away the understanding." 

From Maryland also came Robert Goodloe Harper able in 
mercantile cases, a thorough lawyer and a felicitous and grace- 
ful orator(i); Philip Barton Key (2), Francis Scott Key (3), 
and W. H. Winder (4). 

The lawyers from Virginia who argued the principal cases 
before the Supreme Court at this time were Edmund J. Lee, John 
Wickham(5), Thomas Swann, Charles Simms, Walter Jones, and 
William Wirt. (6) 

A brief survey of the volumes of C ranch's Reports, through 
the year 1815, shows a mere handful of counsel from other 
States. Roger Griswold, of Connecticut (7), appeared in a case 
in 1801. John Quincy Adams of Massachusetts, William Hunter 
of Rhode Island, (8) and Luther Martin, appeared in a Rhode 
Island case, Head v. Providence Ins. Company (2 Cranch 127), 
in 1804-05. A later Massachusetts case in the same volume, 
Graves ?>. Boston Marine Insurance Company, was argued by 
Richard Stockton of New Jersey, and Luther Martin of Mary- 
land, against R. G. Harper and F. S. Key of Maryland and 
Jared Ingersoll of Pennsylvania. In a famous group of cases 



(1) Born in 1765, Princeton 1785, admitted to the Bar in Charleston, 
S. Car. 1786, son-in-law of Charles Carroll of Carrollton, U. S. Senator 
1816-1821. 

(2) Born in 1757. 

(3) Born in 1780, nephew of P. B. Key. 

(4) Born in 1775. 

(5) Born in 1763. 

(6) Born in 1772. U. S. Atty Gen. 1817-1829. 

(7) Born in 1762, Yale 1780, Judge of Supreme Court of Conn. 1807. 

(8) Born in 1774, studied in the Temple in London, admitted to the 
Bar in 1795 in Rhode Island. 



THE BAR 1789-1815. 229 

reported under the name of Rose v. Himely (4 Cranch), in 1807- 
08, ten counsel argued C. Lee, Harper, S. Chase, Jr., Dallas, 
Rawle, Ingersoll and Drayton against Du Ponceau, E. Tilghman 
and Luther Martin ; of whom John Drayton, from South Caro- 
lina^), was the only one not of the Maryland, Virginia, or 
Pennsylvania Bar. Henry Clay, then from Kentucky, made his 
appearance, in 1808, in Skillem's executors v. May's executors 
(4 Cranch). In 1809, Horace Binney, destined to lead the 
Philadelphia Bar for nearly half a century, made his first argu- 
ment before the Supreme Court in Bank of the United States v. 
Dez'eau.r ;(2) and in the same year he appeared in a case with 
John Quincy Adams and Ingersoll. Edward Livingston, of New 
York and Louisiana, appeared also in 1809. 

In 7 and 8 Cranch (1812-1814), Samuel Dexter, Daniel Davis 
and Rufus G. Amory of Massachusetts, and Pitkin and Putnam 
of Rhode Island, appear in various prize cases. In 1814, the 
name of Daniel Webster appears, for the first time, he having 
been admitted to practice before the Supreme Court in the winter 
of 1813-14. The next year Gay, Charles A. Wickliffe,(3) and 
George M. Bibb (4) of Kentucky, argued; and for the first time 
prominent New York counsel appear, when Thomas Addis 
Emmett and J. Ogden Hoffman argued the famous case of The 
Nereide, (9 Cranch 388) against Dallas and Pinkney. 

Such were the lawyers who built up the fabric of early Ameri- 
can law. And, as has been justly remarked, "While no judge 
ever profited more from argument; it is not, perhaps, diverging 
into the circle of exaggeration to say, that no Bar was ever more 
capable of aiding the mind of the Bench, than the Bar of the 
Supreme Court, in the time of Chief Justice Marshall." 

The Attorney Generals of the United States during this period 
were Edmund Randolph, of Virginia, appointed in 1789; 
William Bradford, of Pennsylvania, in 1794; Charles Lee, of 
Virginia, in 1795; Theophilus Parsons, of Massachusetts, 
appointed in 1801, but who never served; Levi Lincoln, of Massa- 

(1) Born in 1/66. 

(2) Chief Justice Marshall in this case speaks of the "course of acute, 
metaphysical and abstruse reasoning employed" by the defendant's counsel, 
R. G. Harper and P. B. Key, to shake the previous "common understanding 
of intelligent men in favor of the right of incorporated aliens or citizens of 
a different state from the defendant, to sue in the national courts." 

(3) Born in 1788. 

(4) Born in 1772, Princeton 1792, author of Bibb's Reports 1808-11, 
Chief Justice of Kentucky. 



230 HARVARD LAW SCHOOL. 

chusetts, in 1801 ; Robert Smith, of Maryland, in 1805; John 
Breckenridge, of Kentucky, in 1805; Csesar A. Rodney, of Del- 
aware, in 1807; William Pinkney, of Maryland, in 1811; Rich- 
ard Rush, of Pennsylvania, in 1814. In the above list of the 
Bar practising before the Supreme Court, the names of many 
notable lawyers who practised only in State courts are lacking. 

The Bars of New Hampshire, New York and of Massachu- 
setts at this time were of peculiar lustre ; but their fame was 
largely local. Of the great lawyers of the two former States, 
mention has already been made. A more detailed description of 
the conditions of the Massachusetts Bar of this time will be given 
in the following chapter, as illustrating the political aspect of the 
practise of the law at the beginning of the Century. 

The part taken by lawyers in the early years of the political 
and commercial development of the United States may be gath- 
ered from a rapid survey of some of the noted cases connected 
with its history, prior to 1815, with particular reference to the 
counsel engaged in them. (i) 

Within two years from his appointment, Marshall pronounced 
the first in the long line of decisions which were to establish the 
United States Constitution, irrevocably, as the Supreme Law of 
the Land, and the Supreme Court as the final arbiter of its con- 
struction and of the validity of State and Federal statutes. (2) 

This was the case of Marbury v. Madison (i Cranch 137), 



(1) "If then the case is in itself of the utmost importance, its settling 
might well be a matter of interest as well as of moment. The parties to 
the action; the lawyers in the case; the judge or judges delivering the 
judgment of the court a consideration of these not only lends an interest 
to the transaction but very often throws a clear and strong light on the 
case itself, and illuminates, at times, other and unsuspected fields of law. 

The very name of the judge means much. The names of the lawyers lend 
a personal interest to the case. A case in which Hamilton, Pinkney and 
Wirt, Jeremiah Mason, Webster and Choate appeared is really interesting 
from that fact alone ; this fact of itself means that the case was carefully 
argued and every aid offered to the court that the wit and ingenuity of man 
could advance or devise I would therefore venture to suggest in conclu- 
sion that the students and practitioners cannot well afford to neglect the 
sketches and biographies where they exist of the distinguished lawyers and 
judges who have honored bench and bar." 

See Letter from James B. Scott of the Columbia University School of 
Law in Green Bag, Vol. XVI (1904). 

(2) In view of Marshall's broad construction of the Constitution, it is 
interesting to note the fears expressed in a letter from Oliver Wolcott to 
Fisher Ames, in December 1799. "He is doubtless a man of virtue but he 
will think too much of the State of Virginia, and is too much disposed to 
govern the world according to the rules of logic. He will read and ex- 
pound the Constitution as if it were a penal statute." 



THE BAR 1789-1815. 231 

in 1803, argued by Levi Lincoln of Massachusetts, Attorney 
General, against Charles Lee of Virginia, ex-Attorney General. 
The case has never been better summed up than by Rufus Choate, 
in his address before the Harvard Law School, July 3, 1845, on 
The Position and Functions of the American Bar as an element 
of Conservatism in the State: 

I do not know that I can point to one achievement in American 
statesmanship which can take rank for its consequences of good, 
above that single decision of the Supreme Court which adjudged 
that an act of the legislature contrary to the Constitution is void 
and that the judicial department is clothed with the power to 
ascertain the repugnancy and pronounce the legal conclusion. 
That the framers of the Constitution intended this to be so is 
certain ; but to have asserted it against Congress and the execu- 
tive, to have vindicated it by that easy yet adamantine demonstra- 
tion than which the reasonings of mathematics show nothing 
surer, to have inscribed this vast truth of conservatism upon the 
public mind so that no demagogue, not in the last stages of 
intoxication, denies it this is an achievement of statesmanship 
of which a thousand years may not exhaust or reveal all the 
good ( i ) . 



(i) John F. Dillon, in his Laws and Jurisprudence of England and 
America (1895) points out that this power to declare legislative acts void 
was .asserted as early as 1780, by the Supreme Court of New Jersey in 
Holmes v. Walton, a case referred to in State t'. Parkhurst, 4 Halstead 444. 
The Virginia Court decided the same way, in Com. v. Caton, 4 Call 5, in 
1782, and in the Case of the Judges, 4 Call 135, in 1788, and in Kamper v. 
Haivkins, i Va. Cases 20, in 1793. The Rhode Island Court held the same 
in Trevett v. Weeden in 1786, North Carolina and Massachusetts followed 
with cases in 1788. 

As late as 1825, Judge John B. Gibson (later the great Chief Justice of 
Pennsylvania) in Eakin v. Raub, 12 S and R 330, vigorously denied the ex- 
istence of the right claimed by the courts to disregard a legislature act be- 
cause of its conflict with the State Constitution. For interesting discus- 
sion of the subject, see Origin and Scope of the American Doctrine of Con- 
stitutional Law, by Prof. J. B. Thayer, Harv. Lazv Rev. Vol. XII (1893) ; 
and J. W. Burrage, in Political Science Quarterly, Vol. X (1895). 

See also especially Address of James T. Mitchell and Hampton L. Car- 
son in John Marshall, Life, Character and Judicial Services, by John F. 
Dillon (1903). 

For many years, however, the authority, as law. of the doctrines an- 
nounced by Marshall in this case, was bitterly opposed by Jefferson and 
his adherents; and he wrote to George Hay, during Burr's trial, June 2, 
1807: 

"I observe that the case of Marbury v. Madison has been cited in the 
Burr case, and I think it material to stop at the threshold the citing that 
case as authority, and to have it denied to be law . . .1 have long 
wished for a proper occasion to have the gratuitous opinion in Marbury v. 
Madison brought before the public and denounced as not law ; and I think 
the present a fortunate one, because the case occupies such a place in the 
public attention. I shall be glad, therefore, if in noticing that case, you 



232 HARVARD LAW SCHOOL. 

In the next year, 1804, the careers of two of the leading 
lawyers of the country were ended through the fatal duel fought 
between Hamilton and Burr, on July 7. It is curious however to 
note that although both were pre-eminent at the New York Bar, 
one, Burr, had never argued a case, and the other, Hamilton, had 
argued only one case, before the United States Supreme Court. (2) 

Three years later, in May 1807, came the trial of Aaron 
Burr for treason, held in the Circuit Court for the District of 
Virginia, before Chief Justice Marshall and District Judge Grif- 
fin. No case of the day aroused more intense excitement or 
enlisted a more brilliant array of counsel. For Burr there 
appeared, first and foremost, Edmund Randolph, ex-Attorney 
General of the United States, weighty in counsel, deep in knowl- 
edge, but ponderous in style ; Charles Lee also ex- Attorney Gen- 
eral; John Wickham, the leader of the Virginia Bar, famed for 
his wit and versatility ; Benjamin Botts of Virginia, a lawyer 
of much tact, local knowledge and common sense ; Jack Baker, 
a local attorney and good fellow; and finally Luther Martin, 
whose favorite phrase "as great a scoundrel as Tom Jefferson", 
expressed his fierce hatred of the President. For the Government 
there appeared Caesar A. Rodney, only recently appointed United 
States Attorney General, who took part in the preliminaries of the 
trial; George Hay, United States District Attorney, and son-in- 
law of James Munroe; William Wirt, then thirty-five years old, 
and practically at the beginning of his brilliant career and Alex- 
ander McRae, Lieutenant Governor of Virginia, a lawyer of 

could take occasion to express the determination of the executive that 
the doctrines of that case were given extra- judicially and against law, 
and that their reverse will be the rule of action with the Executive." 
See Writings of Thomas Jefferson, Vol. IX. 

(i) One of the results of this duel was the passage of statutes in var- 
ious states. New York, Rhode Island, Massachusetts, and Pennsylvania, 
forbidding duels; and in New York, by an act of 1816, all attorneys, be- 
fore being admitted to practice, were required to take an oath of non-par- 
ticipation in a duel. 

See Act of 1804 (Mass.) c. 123; Commonwealth v. Robert C. Hooper, 
Thatcher's Criminal Cases (Mass.) 456, (1834). 

See also In re Attorneys Oaths, 20 John. 492 (1819). Duels at this time 
were of common occurrence, both in the United States and England. 

See for an interesting account of this condition, Life of fosiah Quincy, 
by Edmund Quincy. 

Two years before Hamilton's duel, his own son had been killed in a duel 
with a lawyer named Eaker. 

In 1803, duels had been fought between Col. Sturtevant and DeWitt 
Clinton, the lawyer ; and Robert Sturtevant and Richard Riker, the lawyer. 

See Pleasantries about Courts and Lawyers of New York, by Charles 
Edwards (1867). 



THE BAR 1789-1815. 233 

courage and tenacity but lacking in tact. To these counsel an 
interesting tribute was paid by the Chief Justice, who said in his 
opinion : 

A degree of eloquence seldom displayed on any occasion has 
embellished a solidity of argument and a depth of research by 
which the court has been greatly aided in forming the opinion it 
is about to deliver. (i) 

The definition of the law of treason laid down, with splendid 
freedom from political considerations, by Marshall saved Burr's 
life, but gave rise to bitter political attacks upon the Chief Jus- 
tice, and renewed a popular demand for an elective judiciary or 
a limited term of office. 

Jefferson wrote to James Wilkinson Sept. 20, 1807(2) : 

The scenes which have been enacted at Richmond are such as 
have never before been exhibited in any country where all regard 
to public character has not yet been thrown off. They are equiva- 
lent to a proclamation of impunity to every traitorous combina- 
tion which may be formed to destroy the Union. . . . 
However, they will produce an amendment to the Constitution 
which keeping the judges independent of the executive will not 
leave them so, of the nation. 

And again, on Sept. 26, 1807, to William Thompson: 

The scenes which have been acting at Richmond are sufficient 



(1) John Randolph was foreman of the Grand Jury. On May 22. the 
trial began, dragging on for five months. 

The first fight arose on Burr's move to have a subpoena duces tecum is- 
sued to President Jefferson, against whom Martin entered into a violent in- 
vective, saying, 

"He has let slip the dogs of war, the hell hounds of persecution to hunt 
down my friend." On June 13, Judge Marshall gave a decision that the 
subpoena should issue. The President, however, never appeared, and for 
answer wrote to Hay, suggesting moving to commit Luther Martin as par- 
ticeps criminis with Burr. 

On June 24. the Grand Jury presented indictments against Burr for 
treason and misdemeanors. On August 17, the jury was impanelled; and 
on August 19, there began the long ten days of forensic argument, resulting 
in Marshall's decision that Burr could not be found guilty on the evidence. 

Among the many lawyers who attended this trial were Andrew Jackson 
and Washington Irving. 

For the best accounts of this trial, see McMaster's History of the United 
States, Vol. Ill ; and Henry Adams' History of the United States, Vol. III. 

Trial of Aaron Burr by James A. Cabell, in N. Y. State Bar Assn. Proc., 
Vol. XXIII. 

Decisive Battles of the Times, by Frederic Trevor Hill (1907). 

(2) Writings of Thomas Jefferson, Vol. IX. 



234 HARVARD LAW SCHOOL. 

to fill us with alarm. We had supposed we possessed fixed laws to 
guard us equally against treason and oppression. But it now appears 
we have no law but the will of the judge. Never will chicanery 
have a more difficult task than has been now accomplished to 
warp the text of the law to the will of him who is to construe 
it. 

In 1809, there occurred in the United States Supreme Court 
a case famous for its counsel Fletcher v. Peck (6 Cranch 87). 
(i) This case arose in the Massachusetts Circuit, and was first 
argued by Luther Martin, against John Quincy Adams and 
Robert G. Harper. 

An entry in J. Q. Adams' diary records that the case was 
thought by the court to be a fictitious one an interesting sug- 
gestion in view of the fact that the decision in the great Dart- 
mouth College Case, ten years later, was based partly on this 
case. 

The court met at the usual hour (n A. M.) and sat until 12 
M. Martin continued his argument until that time, and then 
adjourned until two. I went to the capitol and witnessed the 
inauguration of Mr. Madison as President of the United States. 
The House was very much crowded and its appearance very 
magnificent. . . . The court had adjourned until two o'clock. 
I therefore returned to them at that hour. Mr. Martin closed 
the argument. March 7. In the case of Fletcher and Peck, he 
(the Chief Justice) mentioned to Mr. Cranch and Judge Livings- 
ton, and had done the same to me on Saturday night at the ball, 
the reluctance of the court to decide the case at all, as it appeared 
manifestly made up for the purpose of getting the court's judg- 
ment upon all the points. And although they have given some 
decisions in such cases, they appear not disposed to do so now. 

The second argument (2) in 1810, was notable for the fact 



(1) The case involved the famous Yazoo Frauds and the constitutionality 
of a statute of the State of Georgia of 1/96, voiding certain grants of land 
made under a previous Act of 1795 on the ground that the passage of the 
Act of 1795 was obtained by fraud and corruption See The Yazoo Land 
Companies, by Charles H. Haskins, Amer. Hist. Ass. Papers, Vol. V 
(1891); and James Wilson and the so-called Yasoo Frauds, by M. C. 
Kh'ngelsmith, U. of P. Law Review, Vol. LVI (1908). 

(2) Fletcher i>. Peck at its first hearing went off on a point of jurisdic- 
tion ; see the following entry in J. Q. Adams' diary: 

"March n, 1809. This morning the chief justice read a written opinion 
on the case of Fletcher and Peck. The judgment in the Circuit Court is 
reversed for a defect in the pleadings. With regard to the merits of the 
case, the Chief Justice added verbally that circumstanced as the court are, 
only five judges attending, there were difficulties which would have pre- 
vented them from giving any opinion at this term had the pleadings beeiv 
correct." 



THE BAR 1789-1815. 235 

that Joseph Story, one year before his appointment as Supreme 
Court Judge, appeared as counsel on the winning side, in place 
of Adams (who had been appointed Minister to Russia). A 
complimentary comment on the counsel is to be found in Mar- 
shall's opinion : 

I have been very unwilling to proceed to the decision of this 
cause at. all. It appears to me to bear strong evidence upon the 
face of it of being a mere feigned case. It is our duty to decide 
on the rights but not in a speculation of parties. My confidence 
however in the respectable gentlemen who have been engaged for 
the parties has induced me to abandon my scruples in the belief 
that they would never consent to impose a mere feigned case 
upon this court. 

In 1811, occured a case, interesting as being one of the first 
involving the title to property under the Louisiana Purchase of 
1803 Livingston v. Jefferson (Federal Cases No. 8411). This 
was an action known as the "Batture Case", brought by Edward 
Livingston against Thomas Jefferson for alleged trespass com- 
mited while President, in removing Livingston from property 
made by accretion of soil, known as the "batture," on the river 
front in New Orleans. A great controversy raged for years over 
this matter, in the courts, the newspapers and the law maga- 
zines. Its permanent effect on the jurisprudence of the country 
arose, however, from the political complexion of the case. 

While it was pending, William Gushing, Judge of the Supreme 
Court, died. The court was Federalist in its politics ; and Jeffer- 
son, whose personal fortune was at stake in the Livingston case, 
urged upon President Madison, with all the energy at his com- 
mand, the extreme necessity for the appointment of a strong 
Republican to fill the vacant position. Jefferson's antipathy to 
Marshall and his distrust of his political motives led him to 
conceive that Marshall would take revenge by finding against 
him if the case came before him. Accordingly, he addressed 
urgent letters to Madison and to all his cabinet, of which the fol- 
lowing may be cited. 

Writing to Albert Gallatin, Sept. 27, 1810, he said(i) : 

What the issue of the case ought to be no unbiased man can 
doubt. What it will be, no one can tell. The judge's invet- 
eracy is profound and his mind of that gloomy malignity which 

(i) Writings of Thomas Jefferson, Vol. IX. 



236 HARVARD LAW SCHOOL. 

will never let him forego the opportunity of satiating it on a vic- 
tim. 

His decision, his instructions to a jury, his allowances and 
disallowances and garblings of evidence must all be subjects of 
appeal. I consider that as my only chance of saving my for- 
tune from entire wreck. And to whom is my appeal? From 
the judge in Burr's case to himself and his Associate Judges in 
the case of Marbury v. Madison Not exactly however. I 
observe old Gushing is dead. At length then we have a chance 
of getting a Republican majority in the Supreme judiciary. For 
ten years that branch braved the spirit and will of the nation 
after the nation has manifested its will by a complete reform in 
every branch depending on them. The event is a fortunate one 
and so timed as to be a Godsend to me. I am sure its importance 
to the Nation will be felt and the occasion employed to complete 
the great operation they have so long been executing by the 
appointment of a decided Republican with nothing equivocal 
about it. But who will it be? The misfortune of [Barnabas] 
Bidwell removes an able man from the competition. Can any 
other bring equal qualifications to those of [Levi] Lincoln? 

I know he was not deemed a profound common lawyer ; but was 
there ever a profound common lawyer known in one of the eastern 
states ? There never was nor never can be one from these states. 
The basis of their law is neither common nor civil ; it is an 
original, if any compound can be so called. Its foundation seems 
to have been laid in the spirit and principles of Jewish law, incor- 
porated with some words and phrases of common law and an 
abundance of notions of their own. This makes an amalgam 
sui generis ; and it is well known that a man first thoroughly 
initiated into the principles of one system of law can never 
become pure and sound in any other. Lord Mansfield was a 
splendid proof of this. Therefore I say there never was nor 
never can be a profound common lawyer from those states. 
[James] Sullivan had the reputation of pre-eminence as a com- 
mon lawyer but we have his history of Land Titles which gives 
us his measure. Mr. Lincoln is, I believe, considered as learned 
in their laws as any one they have. Federalists say that Par- 
sons is better ; but the criticalness of the present nomination puts 
him out of the question. 

To Madison, he wrote, Oct. 10, 1810: 

[George] Blake calls himself a republican but never was one at 
heart. His treachery to us under the embargo should put him 
by forever. [Joseph] Story and [Ezekiel] Bacon are exactly 
the men who deserted us on that measure and carried off the 
majority. The former unquestionably a tory and both are too 
young. I say nothing of professing federalists. Granger and 
Morton have both been interested in Yazooism. The former 
however has been clear of it. 



THE BAR 1789-1815. 237 

All the lawyers mentioned in these letters were Republicans 
from Massachusetts (that being the State from which Gushing 
had been appointed). 

Madison was evidently impressed with the appeals ; for, after 
offering the vacant judgeship to Levi Lincoln and to John 
Quincy Adams, (both of whom declined), he finally appointed 
Joseph Story, then a young man of thirty-two, and a strong 
Republican. This appointment in its effect upon the future of 
American jurisprudence can be reckoned only second in import- 
ance to that of John Marshall. The appointment in its political 
aspect proved, however, a sore disappointment to Jefferson ; for 
Story soon after his accession to the bench, became a staunch 
supporter of Marshall's strongly Federal doctrines. 

When the "Batture Case" was finally argued in the United 
States District Court in 1811, the plaintiff's counsel was John 
Wickham, while George Hay, William Wirt, and Littleton Waller 
Tazewell, appeared for Jefferson ; District Judge John Tylor 
(father of President Tyler) and Chief Justice Marshall pre- 
sided ; and Tyler gave the opinion, finding for Jefferson on a 
point of jurisdiction. 

The following extract throws a quaint light upon the lawyers 
of the day : 

While I freely acknowledge how much I was pleased with the 
ingenuity and eloquence of the plaintiff's counsel, I cannot do so 
much injustice to plain truth as to say that any conviction was 
wrought on my mind of the soundness of the arguments they 
exhibited, in a legal acceptation. It is the happy talent of some 
professional gentlemen, and particularly of the plaintiff's coun- 
sel, often to make the worse appear the better excuse. . . . 
These arguments and this eloquence, however, have been met by 
an Herculean strength of forensic ability which I take pride 
in saying sheds lustre over the bar of Virginia. (i) 

(i) See also Livingston v. Dorgcnois, 7 Cranch 577 (1813). 

Livingston finally lost his case in the Louisiana Supreme Court, see 
Morgan v, Livingston, 6 Martin 19, (1819). 

And see Randall's Life of Jefferson, Vol. Ill ; Letters and Times of 
the Tylers, by Leon G. Tyler; Opinions of DuPonceau, Rawle, Ingersoll, 
E. Tilghman and W. Leivis in behalf of Edward Livingston, in Hall's 
American Law Journal, Vol. II (1809) ; Proceedings of the United States 
Government in maintaining the Public Rights to the Beach of the 
Mississippi adjacent to New Orleans against the intrusion of Edward 
Livingston, by Thomas Jefferson (1812), in Hall's American Law 
Journal, Vol. V (1816). 

An answer to Mr. Jefferson's Justification of his conduct in the case 
of the New Orleans Batture by Edward Livingston (1813), in Hall's 
American Law Journal, Vol. V (1816). 



238 HARVARD LAW SCHOOL. 

In the same year, 1811, the United States Circuit Court in 
New York was called upon, in Livingston v. Van Ingen ( I Paine 
45 ) , ( i ) to deal with a new invention a steamboat patent 
which was, within the next thirty years, to revolutionize the old 
law of carriers, to necessitate an elaborate body of new law, and 
to produce a tremendous change in the condition of the practise 
of law. It was only four years previously that Robert Fulton's 
steamboat had made its first successful trip from New York 
to Albany, "by fire and steam," 150 miles in 32 hours, on 
August 17, 1907, (at the time of Aaron Burr's trial). (2) 

THE WAR OF l8l2 AND THE DEVELOPMENT OF A BODY OF AMERICAN 

LAW. 

Although the War of 1812 was not an historic event of par- 
ticular influence on the political growth of the country, its effect 



On May 25, 1810, Jefferson wrote to Madison : 

"In speaking of Livingston's suit I omitted to observe that it is a little 
doubted that his knowledge of Marshall's character has induced him to 
bring this action. His testifications in the case of Marbury, in that of 
Burr and the late Yazoo case show how dexterously he can reconcile law 
to his personal biases ; and nobody seems to doubt that he is prepared to 
decide that Livingston's right to the batture is unquestionable." 

Marshall wrote to Story, July 13, 1821 : 

"For Mr. Jefferson's opinion as respects this department, it is not dif- 
ficult to assign the cause. He is among the most ambitious and I suspect 
among the most unforgiving of men That in a free country with a writ- 
ten constitution any intelligent man could wish a dependent judiciary or 
should think that the constitution is not a law for the court as well as the 
legislature would astonish me if I had not learnt from observation that 
with many men the judgment is completely controlled by the passions. 
The case of the mandamus (Marbury v. Madison) may be the cloak, but 
the batture is recollected with still more resentment." 

See Letters of Marshall in Mass. Hist. Soc. Proc., 2nd Series, Vol. XVI 
(1900-1901). 

(1) It is interesting to note that the court held in this case that the 
United States Courts had no authority to issue injunctions in patent cases. 

An Act of Congress, Feb. 15, 1819, gave such authority. 

(2) A successful trial trip of the world's first steamboat invented by 
John Fitch was made in 1787, in the presence of all the members of the 
Federal Convention, except Washington, Oliver Ellsworth being a guest 
on the boat. In 1787, Fitch obtained a patent and again in 1791. At this 
time he wrote to Gen. Thomas Mifflin of Penn. : "Should I suggest that 
the navigation between this country and Europe may be made so easy as 
shortly to make us the most popular empire on the earth, it probably at 
this time would make the whole very laughable." 

Robert Fulton's first, but unsuccessful, steamboat had been tried on the 
Seine at Paris in the same month and year (April, 1803) as the sale of 
Louisiana to the United States, both the steamboat and the sale being 
largely the result of the efforts of Robert R. Livingston. 

See History of American Steam Navigation, by John H. Morrison 
(1903)- 



THE BAR 1789-1815. 239 

was most important on the commercial tendencies and upon the 
development of the law in the United States. Its impress is 
markedly seen in legal history first, in giving rise to a vast num- 
ber of decisions on Prize and Admiralty Law ; second, in the 
growth of manufacturing corporations and the rise of the import- 
ant branch of the law relating thereto ; third, in turning commer- 
cial and industrial efforts from shipping and agriculture to man- 
ufactures and inventions, and consequently in establishing a sys- 
tem of patent law ; fourth, in necessitating the development of 
internal means of communication the coasting trade being 
ruined by the British blockade and thus promoting the construc- 
tion of canals, multiplying turnpikes, and preparing the people 
to demand the swifter means of transportation by steam rail- 
roads; fifth, in shutting off the country from its supply of Eng- 
lish law reports and books, and thus throwing the courts upon 
strictly American resources in the solution of new legal prob- 
lems. 

To the ability of the American judges and lawyers to meet 
these new contingencies as they arose, the numerous decisions 
in "cases of new impression", in the early reports of those days, 
bear ample proof. 

Maritime and Admiralty Law was undoubtedly the portion of 
the law which most immediately affected the citizens of the United 
States in those days. The troubles with the French Directory, 
the Mediterranean pirates of Tripoli, the Berlin and Milan 
Decrees of Napoleon in 1806-07; the retaliatory Orders in 
Council of the British Ministry, the Embargo and Non-Inter- 
course Acts of Thomas Jefferson, and finally, the War of 1812, 
all created conditions vital to the pockets of the wealthy mer- 
chants and ship owners of the United States. 

"The Embargo had fallen like a withering curse upon New 
England. Under its desolating blight, her ships rotted at their 
wharves, her business stagnated, her industries were paralyzed, 
and her laboring population was thrown out of work. Ruin con- 
fronted her merchants ; poverty and starvation stared her work- 
ingmen in the face."(i) 

At first, shipowners had looked to the courts for relief against 
the obnoxious laws. But in 1808, Judge John Davis had dis- 
appointed their hopes by his decision in the case of U. S. v. 



(i) Life and Times of George Cabot, by Henry Cabot Lodge (1877). 



2 4 o HARVARD LAW SCHOOL. 

Brigantine William, in the United States District Court in Massa- 
chusetts, holding the Embargo Act constitutional, notwithstand- 
ing the fact that Samuel Dexter, the leader of the Massachu- 
setts Bar, had argued to the contrary, and Theophilus Parsons, 
the great Chief Justice of Massachusetts had given an extra 
judicial opinion as to the unconstitutionality of the obnoxious 
statute. ( i ) 

Despairing of any remedy in the courts, the ship owners adjusted 
themselves to new conditions, and began to indulge in private 
warfare, disregarding all the various acts, orders in council and 
decrees; and privateering became a commercial business. "The 
merchant became marauder. From every port of the New Eng- 
land States, ships, which had lain rotting and warping in the 
sun, issued, new rigged as privateers, now returning with prizes, 
now captured by the enemy." (2) 

The early State and Federal Reports are flooded, therefore, 
with cases not only in the Federal Admiralty courts, but also in 
the State courts, construing the policies of marine insurance com- 
panies, and adjusting the rights of captors, neutrals, belligerents, 
persons trading under licenses and privateering under letters of 
marque and reprisal or otherwise. From the large proportion 
of cases in the law reports involving these marine insurance com- 



(1) See Report of the case in Hall's American Law Journal, Vol. II, 

(1809). 

John Quincy Adams wrote : 

"I wrote to Mr. Bacon that on the question of the Embargo there was 
in Massachusetts a judiciary of which he must think, what I could not 
say. It was with a repugnance, I could not express, that I saw a des- 
perate party leader in the Chief Justice of the Commonwealth. It was 
from him alone that the pretence of the unconstitutionality of the embargo 
derived any countenance. Even Mr. Pickering had not ventured to start 
that idea. It was the stimulus to the people of forcible resistance against 
it. It was a gigantic stride towards a dissolution of the Union. Mr. Par- 
sons not only broached the opinion, but very extra-judicially made no se- 
cret of it, upon the exchange and at insurance offices. Even the veneration 
entertained by the District Judge for his personal fame as a lawyer, was 
not exempted from the operation of its influence. Mr. Dexter argued 
against the constitutionality of the embargo, as a lawyer for his client. 
But there is one decisive proof that Mr. Dexter had no confidence in this 
argument. The District Judge to whom he addressed it and who decided 
against him was a Federalist. Four of the six judges of the Supreme 
Court of the United States Marshall, Gushing, Chase and Washington 
were Federalists. Yet Mr. Dexter acquiesced in the decision of the Dis- 
trict Judge and did not take an appeal to the judge of the Circuit Court, 
Gushing. 

See Documents Relating to New England Federalism, by Henry Adams 
(1870). 

(2) Life and Letters of Joseph Story, by W. W. Story. 



THE BAR 1789-1815. 241 

panics, it would seem that the companies seldom paid a claim, 
without a contest at law. 

The most successful and wealthiest lawyers at this time were 
those with a maritime practice; and as Horace Binney writes 
of this period (1807-1817): 

The stoppings, seizures, takings, sequestrations, condemnations, 
all of a novel kind, unlike anything that had previously occurred 
in the history of maritime commerce the consequence of new 
principles introduced offensively and defensively by the bellig- 
erent powers, gave an unparalleled harvest to the Bar of Philadel- 
phia. No persons are bound to speak better of Bonaparte than 
the Bar of this city. 

He was, it is true, a great buccaneer and the British followed 
his example with spirit and fidelity ; but what distinguished him 
and his imitators from the pirates of former days was the felicit- 
ous manner in which he first, and they afterwards, resolved 
every piracy into some principle of the laws of nations. Had he 
stolen and called it a theft, not a single law suit could have grown 
out of it. The underwriters must have paid. . . . But he 
stole from neutrals and called it lawful prize. . . . He always 
gave a reason, and kept the world of law inquiring how one of 
his acts and his reasons for it bore upon the policy of insurance. 

To deal with this sitution, a brand new body of law had to be 
formulated and it was the good fortune of the United States 
that it possessed a judge, capable of performing this task, in 
Joseph Story, whose decisions practically made the Prize and 
Admiralty Law for this country, just as the decisions of Sir 
William Scott [Lord Stowell] were contemporaneously establish- 
ing such law for Great Britain. 

When Scott was appointed, in 1798, in England, there were 
no Admiralty Reports; and by 1811, Robinson's Reports of 
Stowell's decisions were practically the sole English authority, the 
old treatises of Welwood, Malloy, Malynes and Marius being 
imperfect and inaccurate. In the United States, all that Story 
had to go upon, were a few decisions in the first five volumes of 
Crunch, a small volume of Bee's Reports, (So. Car.) Mariott's 
Admiralty Forms, and a small collection of precedents accom- 
panying Hall's translation of Clerke's Praxis; hence cut off by 
the war from the benefit of Lord Stowell's contemporary deci- 
sions, Story construed Admiralty Law practically unaided and 
alone. 

The first prize case of prime importance in the Supreme Court 
10 



HARVARD LAW SCHOOL. 

was Rose v. Himely (4 Cranch 241), in 1808, in which ten coun- 
sel took part ; Charles Lee, R. G. Harper, S. Chase, Jr., A. J. 
Dallas, W. Rawle, Ingersoll, and Drayton appearing against 
DuPonceau, E. Tilghman, and Luther Martin. Of this case, 
Story wrote, February 16, 1808, (before his appointment to the 
Bench) : 

Here I am in the wilderness of Washington . . . The 
scene of my greatest amusement as well as instruction in the 
Supreme Court. I daily spend several hours there. One cause 
only has been argued since I came here, and that was concluded 
today after occupying a space of nine days. Almost all the 
eminent counsel of the adjoining States were engaged in it. 

Seven years later, in 1815, Judge Story delivered his celebrated 
opinion, in the Circuit Court, in De Lovio v. Boit (2 Gall. 398) 
one of the most elaborate in the annals of the law, exploring and 
stating at length the history and extent of admiralty jurisdiction 
a treatise in itself an opinion, which in the words of its 
opponents, "sucked up jurisdiction like a sponge." 

In the same year, the Supreme Court decided the famous case 
of The Nercide (9 Cranch 389), in which Thomas Addis 
Emmett of New York made his renowned argument, with J. 
Ogden Hoffman, against Alexander J. Dallas and William Pink- 
ney. The latter though unsuccessful, so dazzled the court with 
his oratory that Marshall in his opinion felt obliged to advert 
to it: 

With a pencil dipped in the most vivid colors and guided by 
the hand of a Master, a splendid portrait has been drawn exhibit- 
ing the vessel and her freighter, as forming a single figure, com- 
posed of the most discordant materials ; and so exquisite was the 
skill of the artist, so dazzling the garb in which the figure was 
presented, that it required the exercise of the cold, investigating 
faculty which ought always to belong to those who sit on this 
bench, to discover its only imperfection its want of resem- 
blance. 

Judge Story, (who dissented from the Marshall's opinion) also 
wrote of this argument Feb. 22, 1815(1) : 

(i) Thomas Addis Emmett, was at this time the leader of the New 
York Bar born in 1765 in Ireland, a student in the Temple in London, he 
arrived in New York in 1804, and died in 1827. 

See especially Story's description of Emmett in Story's Life and Letters, 
Vol. I. 

See Memoirs of Thomas Addis Emmett, by Charles G. Haines (1829) ; 
and Memoir, in Story's Miscellaneous Works. 



THE BAR 1789-1815. 243 

Mr. Pinkney and Mr. Emmett have measured swords in a 
late cause. I am satisfied that Pinkney towers above all his 
competitors. Mr. Emmett is the favorite counsellor of New 
York, but Pinkney's superiority to my mind was unquestionable. 
I was glad, however, to have his emulation excited by a new 
trial. It invigorated his exertion, and he poured upon us a 
torrent of splendid eloquence. 

To meet the second set of conditions produced by the War 
the rapid growth of business and manufacturing corporations 
the law had few modern precedents or established rules. 

The fundamental distinction between corporations, public and 
private, had been nowhere mentioned by Blackstone. Kyd's 
Corporations, in 1793, then practically the only book on the sub- 
ject, related almost entirely to municipal corporations. In the 
United States, prior to 1800, there had been few cases involv- 
ing corporations. Kirby's Reports (1789) contains only four 
such cases, one of an ecclesiastical society and three of munici- 
pal corporations; Root's Reports (1798), containing the earliest 
Connecticut cases, has one case of a church corporation. Harris 
and McHenry's Reports (Maryland, 1809), containing the 
earliest American cases, have one church corporation case in 
1796, and one private corporation case in 1799. 

From 1790 to 1800, the Supreme Court of the United States 
had only a single corporation case before it Bank of North 
America v. Vardon (2 Dallas 78), in 1790. During the Colonial 
Governments before 1776, there were but six corporations of 
strictly American origin(i). After the Revolution, the first four 

Feb. 27, 1829, Story wrote to W. Sampson : 

"Mr. Emmett was a new and untried opponent and brought with him the 
ample honors gained at one of the most distinguished Bars in the Union. 
His speech was greatly admired for its force and fervor, its variety of re- 
search and its touching eloquence. It placed him at once by universal con- 
sent in the first rank of American Advocates but not before Mr. Pinkney." 

(i) These were as follows: The New York Company for Settling a 
Fishery in these parts (1675) ; The Free Society of Traders, in Pennsyl- 
vania (1682) ; The New London Society United for Trade and Commerce, 
in Connecticut (1723); The Union Wharf Company, in New Haven 
(1760) ; The Philadelphia Contribniionship for the Insuring of Houses 
from Loss by Fire (1768); The Proprietors of Boston Pier of the Long 
Wharf in the Town of Boston in New England (1772)- 

Pennsylvania also chartered in 1759 what was in effect a life insurance 
company, The Corporation for the Relief of Poor and Distressed Presby- 
terian Ministers and of the Poor and Distressed Widows and Children of 
Presbyterian Ministers. 

See also as to early associations in the nature of corporation, Corpora- 
tions in the Days of the Colony, by A. McF. Davis, Pub. of Colonial Soc. 
of Mass. (1892-94). 



244 HARVARD LAW SCHOOL. 

corporations chartered were the Bank of North America in Penn- 
sylvania, in 1780, and by the Congress of the Confederation, 
in 1781; the Massachusetts Bank, in Massachusetts; and the 
Mining Company in Litchfield in Connecticut, in 1789; and the 
Agricultural Society of Philadelphia, in 1785. Prior to 1800, the 
only States to grant charters to any manufacturing corporations 
were Massachusetts which incorporated three; New York, two; 
Connecticut, Kentucky, and New Jersey, each one(i). 

The modern law of business corporations may be said to have 
been brought into being by Jefferson's Embargo Acts statutes 
which produced also the insolvency acts which were soon to be 
the fruitful source of trouble in the courts and especially in 
interstate relations. Prior to the Embargo Acts (2) and the 
Declaration of War in 1812, foreign commerce in New York 
and New England, and the production of food stuffs for export 
in the Southern States had been the great source of wealth. 
Both were prostrated by those acts. "The ships rotted in the 
docks, the crops in the fields and warehouses a chain of suffer- 
ing encircled the community." Under these conditions, atten- 
tion was turned to the development of manufactures. Cotton, 
woolen, iron, and glass factories sprang up, (3) and with these 
industries arose the first large business corporations. 

One of the first general incorporation acts was passed in 
New York in 1811, being limited to a few specified industries. 



(1) See History of the Law of Business Corporations before 1800, by 
Samuel Williston, Harv. Law Rev., Vol. II, (1888). 

There had, however, been a considerable development of corporations 
formed for purposes other than manufacturing. As tabulated by Mr. 
Simeon E. Baldwin, it appears that in the sixteen states, 5 corporations 
had been formed for aid of agriculture, 26 for Banking, 36 Bridge, I Bury- 
ing Ground, 21 Canal, 6 Societies of Trade & Commence, i Aid of Emi- 
gration, I Fisheries, 25 Insurance, 2 Logging, I Land, I Mining, 26 Im- 
proving Navigation, 38 Roads and Turnpikes, 21 Waterworks and Aque- 
ducts, and by the United States Government 2 Banks a total of 213. Of 
these, Massachusetts had granted 88, or over a third ; Connecticut, 37 ; 
New York, 21 ; and Virginia, 20. 

See S. E. Baldwin in Two Centuries Groit'th of American Law. 

(2) Judicially termed by Judge Sewall, in the first case arising under 
them in the Massachusetts State Courts in Baylies v. Fettyplace, 7 Mass. 
325, 1811, "those extraordinary laws." 

(3) In 1788, the first cotton factory in this country was started in 
Beverly, Massachusetts, "regarded as so marvellous and unique an estab- 
lishment," says Andrew P. Peabody in his Harvard Graduates, "that Gen- 
eral Washington on his presidential tour in 1789 was taken to visit it." 
The experiment was a failure and the corporation was dissolved. In 1795 
the cotton gin was patented ; and at once cotton mills began to revive, the 
Slater's in Pawtucket, R. I., the Cabots in Beverly, Mass. 



THE BAR 1789-1815. 245 

Massachusetts however took the lead in number of corpora- 
tions; and the scheme of the law of business corporations in that 
State was largely developed on the lines of the charters, statutes, 
and court decisions relating to the other large corporations of 
the day the Turnpike Corporations^ i) the "Proprietors of 
Bridges" the Banking Corporations, the "Proprietors of Mills" 
"the Proprietors of Locks and Canals" and "the Proprietors of 
Log Booms." The first case, however, in which a business cor- 
poration appeared as party in Massachusetts, was not decided 
until 1813, when it was held that a foreign corporation might 
sue as plaintiff. In the same year, there are court records of 
cases involving a cotton factory and an iron factory corporation ; 
in 1814, a slate company; and in 1815, a hat corporation. (2) 

In New York, the first case involving a business corpora- 
tion (other than lock, turnpike, or insurance) does not appear 
until 1817 Dutchess Cotton Manufacturing v. Davis, (13 John- 
son). 

In the Supreme Court of the United States, there had been 
but two cases involving corporation law between 1800 and 1815. 
Both, however, had a profound effect upon the development of 
the law the one in restricting the growth of corporate liability, 
the other in emancipating corporate action from old Common 
Law bonds. In the first, in 1804, Head v. Providence Ins. Co. 
(2 Cranch 600), Marshall laid down the doctrine that "when 
the charter prescribes to them a mode of contracting, they must 
observe that mode, or the instrument no more creates a contract 
than if the body had never been incorporated." 

In the other, Bank of Columbia v. Patterson Admr. (7 Cranch 
299), in 1813, Mr. Justice Story held (largely on the authority 
of Massachusetts cases) that the old doctrine that a corpora- 
tion could only act under seal was obsolete, and that "it could 
answer no salutary purpose, and would almost universally con- 
travene the public convenience." (3) No greater impetus could 



(1) The Turnpike Corporations had come largely into vogue between 
1797 and 1810, and had been the source of much litigation, especially in 
the matter of assessment on stockholders, and payment of subscriptions 
to stock. 

(2) Portsmouth Livery Co. v. Wilson, 10 Mass. 91. Medway Cotton 
Manufactory v. Adams, 10 Mass. 360. Salem Iron Factory v. Danvers, 10 
Mass. 514. New York Slate Co. v. Osgood, n Mass. 60. Emerson v. Prov- 
idence Hat Mfg. Co., 12 Mass. 237. 

(3) As an illustration of the difficulties of law practice at this time, 
arising from the scarcity and infrequency of law reports the court cites in 



246 HARVARD LAW SCHOOL. 

have been given to business corporations than this decision, 
Which thus allowed them to make parol contracts by authorized 
agents ; and the growth of modern corporation law may be dated 
from this case. 

The rise of corporations was not viewed, however, with equan- 
imity, even in those early days. And many lawyers, as well as 
laymen, echoed the sentiments of James Sullivan, Attorney Gen- 
eral of Massachusetts, who said in 1807 in his argument, in Ellis 
v Marshall (2 Mass. 269), a case in .which Theophilus Parsons 
and Samuel Dexter, also appeared: 

The great increase of corporations for almost every purpose 
is seriously alarming Interested and corrupt motives are grow- 
ing daily more prevalent from this source. The independence 
and integrity of every branch of our government are attempted; 
and it is full time that a check be put to this spirit. And to an 
independent and enlightened judiciary can we alone look for 
its application. 

With the development of manufacturing business, came the 
growth of Insurance Law. The first fire insurance corporation 
in the United States was The Philadelphia Contributionship for 
Insuring houses from Loss by Fire incorporated on the mutual 
plan, in 1752. For many years, however, most of the fire insur- 
ance companies were unincorporated associations, existing prin- 
cipally in New York. 

One of the earliest reported cases of fire insurance was Stetson 
v. Mass. Mutual Ins. Co. (4 Mass. 330), in 1808. There 
was no text book on the subject however prior to 1815. Marine 
Insurance was an early and well developed part of the law, 
although carried on, until after the beginning of the iQth Cen- 
tury, largely by private individuals unincorporated. Life 
Insurance was, in 1815, hardly known, the earliest case being 
that of Lord v. Dall (12 Mass. 115), in 1809. Accident Insur- 
ance was unknown. 

In the year 1815, Patent Law in the United States was just 
beginning to come into existence. In 1790, there had been en- 
acted the first general Patent Act; the first patent being issued 

Danforth v. Schoharie Turnpike Co., 12 John. 231, decided in May 1815 
this case of Bank of Columbia v. Patterson Admr. as authority; but the 
reporter adds in a note "This case was cited and read to the court from a 
.'gazette dated March 18, 1815," notwithstanding the case cited was decided 
in the United States Supreme Court, in 1813. 



THE BAR 1789-1815. 247 

"for making pot and pearl ashes." In 1792, thirty-three patents 
had been issued; in 1793, eleven; and in 1794, seventy-three, 
among which was Eli Whitney's cotton gin. In the whole first 
ten years, however, there were only 266 patents. 

The first book on patents was not written until 1803, when 
Collier on Patents was published in England. It was not until 
1819, that cases of infringement of patents were brought under 
the equity jurisdiction of the United States Circuit Courts. In 
the Supreme Court prior to 1815 there had been only two patent 
cases Tyler v. Tucl (6 Cranch 324), in 1810, involving the 
right of an assignee of part of a patent to maintain an action 
on the case for infringement, and Evans v. Jordan (9 Cranch 
199), in 1815; the latter being the first of an interminable series 
of cases, involving an improved hopper boy for manufacturing 
flour and meal. In all the Federal Circuit Courts there had 
only been thirteen patent cases, six of which had been decided 
by Judge Bushrod Washington, and five by Judge Story. 
Perhaps one of the most important effects of the War of 1812 
upon American law was the impetus which it gave to the pub- 
lication of American law reports first, through the increased 
spirit of nationality which it promoted; second, through the cut- 
ting off of the importation of English books. 

It is to be remembered that in 1812, the first American law 
report was only twenty-three years old ; in few of the States had 
law reports been published for more than six or eight years. In 
the great State of New York the first report had been published 
in 1804, and in Massachusetts in 1806. (i) 

Judges hitherto had not been in the habit of writing out their 
decisions ; and had they done so, they had no reporter, and no 
way of making their decisions public, historical, or authoritative 
as precedent. (2) 

With the beginning of printed reports many of the cases 
were, therefore, so far as they were to be cited in the future, 
cases "of first impression." Hence it was fortunate for the 
United States that at the time when American decisions were 
beginning to be published and the cases so printed were to be 
used by future generations as establishing the law, there hap- 



1 i ) See Chapter X supra, for greater details. 

(2) For interesting account of these legal conditions see Discourse 
on the Life, Character and Public Services of Ambrose Spencer, Chief 
Justice of New York, by Daniel D. Barnard (1849). 



248 HARVARD LAW SCHOOL. 

pened to be presiding over the courts of many of the States 
Chief Justices of pre-eminent ability as lawyers. In 1812, in 
Massachusetts, Theophilus Parsons was Chief Justice; in New 
Hampshire, Jeremiah Smith ; in New York, James Kent, with 
whom were associated three great lawyers, Ambrose Spencer, ( I ) 
Brockholst Livingston and Smith Thompson (2) ; in Pennsyl- 
vania, William Tilghman; in South Carolina, Henry W. De 
Saussure was Chancellor. 

The limited scope of the law of the times is perhaps best illus- 
trated by the fact that the law of torts which makes so large 
a part of the body of modern law, was, in 1815, practically con- 
fined to cases of trespass to person or property, assault, trover, 
replevin, and slander; actions of deceit and actions for negli- 
gence were very few. In Kirby's Reports (Conn.), covering 
201 cases from 1785-1788, 52 are actions of tort, of which one 
half are trespass, and one half actions of disseizin or ejectment. 
In Harris and McHenry's Reports in Maryland, published in 
1809, and covering cases 1658-1775, a large proportion of the 
cases are actions of ejectment or trespass. (3) 

In New York, the first reported negligence case was not until 
1810 (Townscnd v. Susquehannah Turnpike Road, 6 John. 90) ; 
the first actions against a common carrier, in 1810 and 1813 
(Sclriefflen v. Harvey, 6 John. 1709), (Elliott v. Russell, 10 
John i ) ; the first negligence case involving a steam carrier, 
decided in the country, occurred in 1817 (Foot v. Wisivall 13 
John 304), in which the conditions to which the law was to be 
applied were so novel, that the plaintiff argued seriously, that it 
was negligence, per se, to navigate a steam-boat on a dark night. 

As to the field of law outside of torts, covered by the early 
decisions, a glance at the titles in the indexes of the first half 
dozen volumes of Massachusetts Reports (1806-1810) shows 
that Probate, Practice, Real Estate and Mortgage, Highway, 
Animal, Witness and Evidence, Insurance and Marine Matters, 
Mills and Fisheries, Sheriffs, Poor and Settlement Law, Turn- 



(1) Born in 1765, Harvard 1783, Chief Justice 1819-23. 

(2) Born in 1767, Chief Justice 1814-19. 

(3) Sir Frederick Pollock, writing in 1886, says that the earliest and 
practically the only English text book on Torts which he could find "was 
a meagre, unthinking digest of The Laiv of Actions on the case for Torts 
and Wrongs, published in 1720, remarkable chiefly for the depths of his- 
torical ignorance which it occasionally reveals." 



THE BAR 1789-1815. 249 

pike Corporations, Trespass practically covered the whole law. 
The titles of Partnership, Contract, Statute of Frauds, 
appear for the first time in the index in 1808. The omissions 
are significant. There are no titles of Equity, Negligence, Bail- 
ment, Bank, Carriers, Conflict of Law, Conversion, Easement, 
Employer and Employee, Estoppel, Landlord and Tenant, Pat- 
ents, Trust, Railroads, Municipal Corporations, Receiver, or Sub- 
rogation. 

Similar conditions prevailed in the other States. 



CHAPTER XII. 

* 

THE MASSACHUSETTS BAR 1785-1815. 

While the names of the lawyers of Pennsylvania, Mary- 
land and the Southern States were known through the country, 
the Bar of New England remained for at least twenty years 
after the Revolution, isolated and local in character and fame. 

Nevertheless, the lawyers practising in this section of the 
country were men of ability quite equal to those of the better 
known Bars. Several factors however contributed to this isola- 
tion. Previous to 1800, the difficulty of communication between 
the States was a serious obstacle. After that date, the extreme 
Federalism of their politics kept the New England lawyers out 
of touch with the Republican leaders of the Bar at Washington. 
The length of the journey necessary to attend the Supreme 
Court was also a serious obstacle. 

The influence of the political situation was most marked on 
the Massachusetts Bar ; and for that reason a description of 
some of its great leaders will throw light upon the legal condi- 
tions of the time. 

Boston and the large towns of Massachusetts were Federal 
to the backbone. The clergy, the merchants, and most of the 
Bar, all united in that political belief. Party lines were rigidly 
and rancorously drawn, and nowhere more so than at the Bar; 
so that clients frequently retained counsel because of their politi- 
cal affiliations rather than their legal ability. 

"The democrat had no caste, he was not respectable," writes 
Henry Adams. "W'hen, in 1793, the French nation seemed mad 
with the frenzy of its recovered liberties, New England looked 
upon the bloody and blasphemous work with such horror as 
religious citizens could not but feel. Thenceforward the mark 
of a wise and good man was that he abhorred the French Rev- 
olution and believed democracy to be its cause."(i) 

In 1800, when the approaching victory of Jefferson was seen 
to be inevitable, the clergy and a large proportion of the edu- 



(i) History of the United States, by Henry Adams, Vol. I. 



MASSACHUSETTS BAR. 251 

cated citizens of New England began to feel towards the Na- 
tional Government the same distrust which they bore to democ- 
racy itself; and they agreed in general with George Cabot, the 
leader of the Federalists of Massachusetts and head of the so- 
called "Essex Junto," when he said, "I hold democracy in its 
natural operation to be the government of the worst. (i) And 
when the Democratic (or Republican) electorate was beginning 
to increase in size and power even in Boston, Fisher Ames wrote 
to Christopher Gore in 1799: 

The Jacobins in the vicinity of Boston are as openly bitter 
as ever and on the whole the rabies canina of Jacobinism has 
gradually spread of late years from the cities where it was con- 
fined to the docks and mob, to the country all that is base is 
of course Jacobin and all that is prejudice and jealousy and 
rancor. 

To be an Anti-Federalist or ''Jacobin," in Eastern Massachu- 
setts, prior to 1800, meant social and business ostracism. "In 
my childhood", wrote Theophilus Parsons, the younger, "Fed- 
eralists and Jacobins very seldom, I believe, met in society. I 
never saw one until I was ten years old, in 1807." (2) Of the 
Essex Bar in 1801, Joseph Story wrote: "At the time of my 
admission, I was the only lawyer within its pale who was either 
openly or secretly a Democrat. Essex was at that time almost 
exclusively Federal, and party politics were inexpressibly violent 
all the lawyers and all the judges in the country were Federal- 
ists." 

The same ostracism of Anti-Federalist lawyers was to be found 
in other Northern States notably New York, where a special 
rule of court, admitting the great lawyer, Thomas Addis Emmet, 
to practice, after his flight to this country from Ireland, was 
strongly opposed by James Kent and other Federalists, on the 
ground that he was a fugitive Jacobin ; and his biographer 
Charles G Haines wrote in 1829: 

The great men of the New York Bar were Federalists. They 
therefore turned their faces against Mr. Emmet. They formed 
a combination and agreed to decline all professional union and 
consultation with him. When Mr. Emmet ascertained the exist- 



__(i) Cabot to T. Pickering Feb. 14, 1804, quoted in Life and Times of 
George Cabot, by Henry Cabot Lodge. 

(2) Memoirs of Theophilus Parsons, by T. Parsons. 



252 HARVARD LAW SCHOOL. 

ence of the league . . . .he did not wait for an attack. He proved 
the assailant. Whenever he met any of the league at the Bar, 
he assumed the attitude of professional war, and he lost nothing 
by contact. If Mr. Emmet has any one extraordinary power 
it is in the ready talent of successful and overaweing reply. The 
league was soon dissolved. Business flowed in and not long 
after his arrival . . . his profession produced him $10000- 
$15000 a year. 

This obstinate disbelief in the possibility of any good coming 
from the new, democratic, American spirit retarded the intel- 
lectual growth of Massachusetts in many directions ; and the 
conservative, English, anti-American atmosphere greatly in- 
fluenced the development of the Bar, tending to nurture law- 
yers steeped in the Common Law, but less in touch with the 
growing independence of thought, characteristic of the Bar of 
such States as Pennsylvania, Maryland and Virginia. 

Nevertheless, the Boston Bar had produced great lawyers 
during these years, though its numbers were comparatively small, 
there being, in 1800, thirty-three lawyers practising before it, of 
whom twenty were attorneys of the Supreme Court, eight at- 
torneys of the Court of Common Pleas, and five barristers, 
James Sullivan, Theophilus Parsons, William Tudor, Perez Mor- 
ton and Shear jashub Bourne(i). 

After 1789, no more barristers were called by the court; and 
the names given in the note on page 57, supra, are probably 
all who were ever called in Massachusetts. 

In 1806, the Supreme Judicial Court adopted the following 
rule by which counsellors were substituted for barristers : 

Ordered First, no attorney shall do the business of a coun- 
sellor unless he shall have been made or admitted as such by 
the Court. 

Second, all attorneys of this Court who have been admitted 
three years before the setting of this court shall be and hereby 
are made counsellors and are entitled to all the rights and privi- 
leges of such. 

Third, no attorney or counsellor shall hereafter be admitted 
without a previous examination. 

At the same time, examiners were appointed from the various 

County Bars. 

An introductory view of the older men of the Bar of this 

period, may be had from a letter of Fisher Ames to Christopher 
(i) See Recollections of Judge John Davis, Law Rep., Vol. IV (1841). 



MASSACHUSETTS BAR. 253 

Gore, who was contemplating resuming practice in Boston, Oct. 
5, 1802: 

Your share will be made up of insurance cases questions 
which our bankrupt law is sowing for the harvest of 1804 . . . 
Mr. Parsons practises on this large scale, and, I will add, fees 
are infinitely better than they were in 1786 . . . Who are the rivals 
for this business with whom you must divide the booty? Par- 
sons stands first, but he is growing older, less industrious, and 
wealth or the hypo may stop his practice. Otis is eager in the 
chase of fame and wealth, and with a great deal of eloquence 
is really a good lawyer and improving. Dexter is very able 
and will be an Ajax at the bar as long as he stays. You know 
however that his aversion to reading and to practice is avowed. His 
head aches on reading a few hours, and if he did not love money 
very well he would not pursue the law. Sullivan, who seems 
immortal . . . will not be in our way. John Lowell's health is 
wretched. A number of eminent lawyers will be wanted in Bos- 
ton ; and though the place is overstocked I think the prospect 
for 1804 not unhopeful. I know of no very dashing young men 
coming forward. 

Fisher Ames had been born in 1758; a Harvard graduate of 
1774, he had studied law in the office of William Tudor, and 
had early become one of the greatest of the Federalist lawyers, 
orators and statesmen of the time. 

Of him, Theophilus Parsons, the younger, wrote(i) : 

No man in this community ever won so much admiration and at 
the same time the warm affection of so wide a circle of friends 
He was perhaps our most eloquent man and his eloquence 
was of a very noble character formed by an harmonious union 
of the best and highest moral and intellectual qualities. . . . 
When we read that, after he closed his great speech in 1796 on 
Jay's Treaty, his opponents begged delay, that members might 
have an opportunity to recover their self-possession, we may 
wonder at this tribute to his power But when we read the 
speech itself, we ask "\Vhat could delay do for them? What 
answer to his arguments could time suggest?" (2) 



(1) Life of Theophilus Parsons, by T. Parsons. 

(2) April 28, Mr. Ames made his great speech. Vice-President Adams 
wrote to his wife : "Judge Iredell and I happened to sit together. Our 
feelings beat in unison. 'My God, how great he is' says Iredell 'How 
great he has been?' 'Noble!' said I. After some time Iredell breaks out 
'Bless my stars I never heard anything so great since I was born' 'Di- 
vine' said I ; and thus we went on with our interjections, not to say tears, 

. 1*1 



to the end." 



254 HARVARD LAW SCHOOL. 

The Sullivan mentioned in Ames' letter was James Sullivan, 
for years after the Revolution the chief competitor of 
John Lowell, the elder, and later of Theophilus Parsons. Un- 
like the others, he was an ardent Anti-Federalist one of the 
few prominent lawyers of that political belief. Born at Ber- 
wick, Maine, in 1744, he had studied law in the office of his 
brother General John Sullivan, a leading lawyer, and Governor 
of New Hampshire. He became a General in the Revolutionary 
War, and settled later in Boston to practice law. In 1777, he 
became Judge of the Superior Court. In 1787, he was made 
Judge of Probate in Suffolk County. From 1790 to 1807, he 
was Attorney General of Massachusetts, and in 1807, Governor, 
and died in 1808. The writer of one of his obituaries says 
that "during a period of nearly forty years his practice at the 
Bar had been more various and extensive than that of any other 
man in the State the court records show that the names of 
Parsons and Sullivan were entered as opposing counsel." He was 
also an extremely able pamphleteer, and the newspapers of Bos- 
ton teemed with political essays from his pen. His interests 
were broad and varied. He was one of the first members of the 
American Academy of Arts and Sciences, one of the founders 
and president of the Massachusetts Historical Society, the orig- 
inator and head of the great Middlesex Canal Corporation, the 
author of the first comprehensive American book of Real Estate 
Law. ( i ) 

The name of Harrison Gray Otis stands well to the front 
of the brilliant Federalist lawyers and orators. (2) Born a 
nephew of James Otis, in 1765, he inherited all his uncle's 
eloquence. Graduating from Harvard in 1783, a classmate of 
the noted lawyers, Ambrose Spencer (later Chief Justice of 
New York), William Prescott, Artemas Ward, and William 
King Atkinson of New Hampshire, he studied in the office of 
Judge John Lowell, became United States District Attorney in 
1796, succeeded Fisher Ames in Congress, and later became 
Mayor of Boston (1829-1831). In the early Massachusetts 
Reports his name, with that of Charles Jackson, rivals even 
Dexter's in number of appearances. Unlike either Parsons or 



(1) Life of James Sullivan, by T. G. Armory. 

(2) See Harrison Gray Otis, Memorial Biographies of N. E. Hist. Gen. 
Soc., Vol. I, (1880). 



MASSACHUSETTS BAR. 255 

Dexter, it was on the charm of his manner and the eloquence 
of his speech that Otis depended for his success. 

"From Mr. Dexter, Mr. Otis differed as much as a man could", 
writes Parsons. "As a book lawyer I suppose he stood on a par 
with him . . . The winning music of his voice made the hearer 
reluctant to lose a word, the flow of his language the persua- 
sive logic in each and all of these he was unrivalled. And to 
all these was added their strongest charm perhaps in the appar- 
ent spontaneity of it all. . . . He had, if ever man had, the 
gift of eloquence grace of delivery, sweetness of tones, beauty 
of illustration, perfect taste in words, and rapidity and clear- 
ness of thought." 

On his death in 1848 the Boston Courier thus summed up his 
talents : 

Conspicuous for rare intellectual accomplishments, admired for 
blandness and urbanity of manners, as an extemporaneous 
speaker seldom equalled, his mind well stored with the glitter- 
ing wealth of classical literature. As a lawyer and advocate 
Mr. Otis made but one step in order to secure an enviable emin- 
ence in his profession. His aid as a counsellor was sought at 
an age when most young lawyers are happy to find employment 
in the humbler character of juniors. 

The three other lawyers mentioned in Fisher Ames' letter were 
all intimately connected with the history of the Harvard Law 
School Theophilus Parsons being the first lawyer to receive an 
offer of a Law Professorship at Harvard ; Samuel Dexter being 
active in urging the foundation of such a Professorship ; and John 
Lowell the younger being the first elected Professor. 

Parsons was born in 1750 and graduated from Harvard in 
I769.(i) He studied law at Portland, Maine, (then Falmouth) 
under Theophilus Bradbury, and was admitted to practice in 
1774. Portland being almost totally burned by the British, in 
1775 he removed to Essex County, Massachusetts, and soon 
began to practice in Newburyport. At this time, he had the 
advantage of the library and company of the aged Judge Ed- 
mund Trowbridge, who, being suspected of Toryism, had been 
driven from Cambridge. Professor Parsons, in his Memoirs, 
speaks of his father's "almost intemperate study" with this 
"oracle of the common law." (2) An anecdote illustrating how 

(1) Memoirs of Theophilus Parsons, by T. Parsons. 

(2) So Chancellor Kent termed Judge Trowbridge; and see Chapter 
III supra, for further details regarding him. 



256 HARVARD LAW SCHOOL. 

complete and exhaustive were his methods and how exact his 
memory, is told regarding a case in which Parsons was retained 
in 1797, by the State of Connecticut, to argue against Alexander 
Hamilton, Ogden Hoffman and Aaron Burr, before Chief Jus- 
tice Ellsworth in the United States Circuit Court. After the 
argument, Hamilton said, at dinner : "Mr. Parsons, pray let me 
ask you one thing. The point I made was suggested to me, 
only after much study of the case, and then almost by accident; 
but I thought it very strong. You were fully prepared for it, 
and gathered and exhibited the authorities at once, and pre- 
vailed, and I must submit ; but I was a good deal surprised at 
it, and what I want to know is, whether you had anticipated that 
point?" "Not in the least" was the answer "but so long ago 
as when I was studying with Judge Trowbridge, the question 
was suggested to me, and I made a brief of the authorities, which 
I happened to have brought with me." 

In 1800, Parsons removed to Boston; but before his removal 
he was in the habit of practising in all the New England States, 
though rarely outside. 

His early success was as a master of prize and admiralty law, 
"of which", writes his son, "few lawyers then knew anything. 
In fact, he had almost the monopoly of it and it was very pro- 
fitable. The late Governor Sullivan, Judge Lowell, and my 
father were the only practising lawyers who had much knowledge 
of it ... My mother used to speak of the 'prize times' as the most 
profitable which she had ever known." 

He was the most learned lawyer of his time and was called 
the giant of the law He comprised in his professional attain- 
ments among other things a full and accurate knowledge of the 
common law, civil, maritime and ecclesiastical law, the law mer- 
chant, the statute and common law of his own country, and the 
law of nations. From the methodical order of his mind, all he 
knew was ever familiarly at his command. His speeches to 
juries and judges were neither eloquent nor elegant, in any- 
thing but pertinency and argument. They were never long. It 
is not remembered that he ever used a brief. 

Thus wrote Chief Justice Isaac Parker, his successor. 

In February 1801 he was nominated as United States Attorney 
General by President Adams, in place of Charles Lee, but though 
confirmed by the Senate, he declined the appointment. 



MASSACHUSETTS BAR. 257 

In 1806, he was appointed Chief Justice of Massachusetts; 
and from that time until his death, in 1813, his judgments 
laid the foundations for a great portion of the law of Massachu- 
setts. "But few pages of the early reports can be read without 
finding illustrations of the fact that immemorial usage and early 
colonial and provincial statutes had upon a vast variety of sub- 
jects almost created a law of our own. Judge Parsons was pre- 
cisely the man to learn, appreciate and apply this local juris- 
prudence; and his happiest efforts are those in which perhaps 
by way of reply to learned arguments of counsel founded upon 
the text of the English law he adduces unanswerable enactments 
and precedents to disprove its binding authority in the State of 
Massachusetts. In such cases we see the thoroughly practical 
man conversant with all sorts of things and familiar with all 
sorts of people; the man who endowed by nature with extra- 
ordinary capacities which study and learning had indefinitely 
improved and developed allowed none of the innumerable occa- 
sions to pass when he was brought into contact with the others 
without making some important addition to his stock of avail- 
able knowledge."(i) 

Such was the veneration of the bar for him as a lawyer that 
they exhibited an unusual awe in his presence. There was great 
neglect (then) in preparing papers for the court and it was sev- 
eral years before it was properly attended to; and I have seen 
him non-suit our oldest counsellor for that cause very often He 
had not much patience to hear an unsound argument nor to hear 
counsel advance an untenable point ; and the lawyers were so 
poorly versed in legal lore they were not only willing but desirous 
that he should take the disposal of the whole case into his own 
hands. I have known him many times to do this. 

So said one of his contemporaries. (2) 

There is little doubt however that the slack methods of the Bar 
needed a strong hand to correct them ; and probably Parsons' 
retort to the famous Samuel Dexter was well grounded. Dex- 
ter, being stopped in an argument by the judge's remark that 
he was trying to persuade the jury of that for which there was 

(1) See The Jurisprudence of Massachusetts, Central Law Journal, 
Vol. I, (1874). 

See also Parsons in Biographical Sketches of Eminent Lawyers, by S. L. 
Knapp, (1821). 

(2) See Letter of Zachariah Eddy to Professor Emory Washburn, in 
1851, in Memoirs of Theophilus Parsons, by T. Parsons. 

17 



258 HARVARD LAW SCHOOL. 

no evidence, replied "Your Honor did not argue your own cases in 
the way you require us to." "Certainly not," was the reply "but 
that was the judge's fault, not mine." 

"No sooner had he taken his seat upon the bench than the 
whole air of the court room seemed charged with a terrible 
energy. No excuse was listened to; no delay was admitted. 
The dropsical dockets rapidly shrank, when gashed by the 
unsparing lancet of the new Chief. The lawyers at first grum- 
bled; but suitors were better pleased, and the great improvement 
effected soon reconciled all persons to the new system."(i) 

Much of the difficulty, in which lawyers of the time found 
themselves, arose from their very general ignorance of plead- 
ing. "Only a few of the leading lawyers pretended to be good 
pleaders", writes Professor Parsons. "My father himself how- 
ever was a very good pleader, having devoted much time to 
this subject. When he had students, everyone was expected to 
write out, in a book prepared for that purpose, declarations, 
pleas, and forms which my father had prepared or adapted. 
And the volumes of precedents afterwards published for the 
use of the profession by Anthon, Story, Oliver, and others were 
compiled in a good degree from these books." 

Parsons frequently carried his autocratic system too far, and 
though his perfect honesty and integrity were admitted, his 
harsh and overbearing treatment of members of the Bar gave 
him the nickname of "The Awfullest Parsons," just as one of 
his predecessors on the Bench, Robert Treat Paine, had been 
called the "Ursa Major." (2) His inflexible spirit, his biting 
sarcasm, and his reserve of manner made it impossible that he 
should ever be popular ; and he did not know the arts of popular- 
ity. But his nature was kindly and all the young lawyers re- 
membered him with affection, as well as awe. 

Joseph Story, in describing Parsons to one of his classes at the 
Law School, said: 

The young members of the Bar used to gather around him 
like the disciples of Socrates. A kind word from him (and he 

(1) The Bench and Bar, by John T. Morse. Memorial Hist, of Boston, 
Vol. IV. 

(2) It was said of Lord Kenyon that he would sometimes get exces- 
sively angry when on the bench and make a sad exhibition of himself. 
One day George the Third said to him at court "My Lord. I am told you 
lost your temper yesterday. I was very glad to hear it ; and I hope you 
will be able to find a better one." 



MASSACHUSETTS BAR. 259 

had many of them for young men) went deep into the heart 
and was never forgotten. . . . When at Salem the Bar usually met 
at dinner at the same table, but Parsons preferred a private 
house. He was shy and did not willingly go into crowded com- 
pany. But he frequently met us in the evening, and we had 
then an opportunity of enjoying his conversation. He touched 
upon everything and left us equally astonished and delighted 
with his wisdom, learning and wit It was bright and flashing 
but it never scorched. 

Parsons was not merely a lawyer. He read and mastered 
many branches of science, metaphysics, and classics, and re- 
membered everything which he read. He was himself an in- 
ventor and an excellent mathematician. 

The sarcastic comment of Sugden on Lord Brougham when 
he was Chancellor of England that "if he only knew a little law 
he would know a little of everything" was only a bitter inver- 
sion of John Lowell's tribute to Parsons, declaring that Parsons 
knew more law than anybody else and more of everything else 
than he did of law. (i) 

In politics Parsons was a staunch, even violent, Federalist (2), 
one of the originators of the "Essex Junto" and called by Jef- 
ferson "one of the enemies of the country". A view of his char- 
acter by a political opponent, John Quincy Adams, is interesting. 
In his diary, Oct. 8, 1819, Adams writes: 

Parsons was an eminent lawyer, a man of extraordinary intel- 
lectual powers, of deep research and extensive learning, of bril- 
liant and ever ready though coarse and vulgar wit, and in his 
domestic and private relations amiable, benevolent and upright. 
But he was a cunning man. His wisdom was left handed. He 
was not only addicted to finessing and trick, but he had the weak- 



(1) See A Journey with fudge Story, Josiah Quincy's Figures of the 
Past. The disadvantage of such omniscience was pointed out by William 
Sullivan (who lived in Parsons' time) as follows: 

"By intuition he saw what the end of a case must be and was impatient 
of the slow process by which inferior minds arrived at it. It is doubtful 
whether it is best for a judge or for the community that he should know 
more and discern much more rapidly than any or all around him when en- 
gaged in the administration of justice." 

Familiar Letters on Public Characters, by William Sullivan (1847). 

(2) John Quincy Adams, in his diary, May 10, 1808, says: 

"I called on Chief Justice Parsons and had some conversations with him 
on political subjects I found him as I expected totally devoted to the 
British policy He also thinks the people of this country corrupted, already 
in a state of voluntary subjugation to France and ready to join an army of 
Buonaparte if he should send one here, to subdue themselves. The only 
protection of our liberties, he thinks, is the British navy." 



260 HARVARD LAW SCHOOL. 

ness to be vain of his artifices. . . . The pride of his heart 
was to overreach. . . . He was withal a timid man, ready 
enough to push others into danger, but easily frightened to 
shrink from it himself. ... In the career of opposition to 
the General Government which that of Massachusetts then (1812) 
pursued, they refused to place the militia under the command 
of an officer of the United States, upon a construction of the 
Constitution of the United States by the judges of the Supreme 
Judicial Court of the Commonwealth, for which nothing but 
the depravity and stupefying influence of faction can account. 

The Governor (Brooks) gave me to understand that he had 
always disapproved that opinion of the Supreme Court ; that there 
had been almost a misunderstanding on the subject between him 
and the late Governor Strong who was entirely swayed by the 
then Chief Justice Parsons, the identical man whom the state of 
Massachusetts has to thank for being in this trouble. . . . 

In this very case after leading the Commonwealth into this 
quagmire, before his death he disavowed the opinion which had 
involved the State in this contest and acknowledged that it was 
erroneous. 

In personal appearance the Chief Justice was thus described 
by Story, in his lecture to his Law School students : 

He was about five feet ten inches in height, somewhat cor- 
pulent and of heavy appearance. His forehead was high and 
smooth; he wore a heavy wig (for he was bald at an early age) 
which was rarely placed upon his head properly. His mind was 
well adjusted, his wig never. He generally wore a bandanna 
kerchief about his neck to protect it from cold winds. His eye 
was clear, sharp, keen and deep set in his head. It looked you 
through and through. It seemed to me the embodiment of the 
eye of the law, piercing through you, and seeing and discover- 
ing everything with astonishing penetration. It was a glance that 
few could bear to have steadily fixed upon them. ( i ) 

A description of Parsons would be incomplete without refer- 



(l) Daniel Webster when a law student in Boston in 1804 in Christo- 
pher Gore's office wrote of his personal appearance : 

"Theophilus Parsons is now about fifty-five years old; of rather large 
stature, (six feet) and inclining a little to corpulency. His hair is brown, 
and his complexion not light. His forehead is low and his eyebrows promi- 
nent. He wears a blue coat and breeches worsted hose, a brown wig ; with 
a cocked hat. He has a penetrating eye of an indescribable color. When, 
couched under a jutting eyebrow, it directs its beams into the face of a 
witness, he feels as if it looked into the inmost recesses of his soul." 

Sullivan describes his "tranquil face amicable and pleasing" and "his 
habit of drawing his chin towards his breast and looking about through 
his eyebrows." 



MASSACHUSETTS BAR. 261 

ence to his constant fits of hypochondria, which sometimes took 
the form of an almost insane delusion. These attacks, however, 
never controlled the vastness of his legal mind. 

Samuel Dexter, born in 1761, was eleven years younger than 
Parsons and died in 1816, three years after Parsons. He gradu- 
ated from Harvard in 1781, a classmate of John Davis (U. S. 
District Judge) and studied law under Levi Lincoln (later Attor- 
ney General of the United States). In 1799, he was United 
States Senator; in 1800, Secretary of State and Secretary of 
the Treasury under President Adams. Of all Massachusetts 
lawyers of the early ipth Century, with the exception of James 
Sullivan, Dexter alone could be regarded as the compeer of the 
Chief Justice; and in most of the important cases in the early 
Massachusetts Reports, Dexter's name appears.(i) 

Of all Massachusetts lawyers, Dexter's services were sought for 
an argument of cases at Washington, in the early years of the 
United States Supreme Court. And it was into his place that 
Daniel Webster may be said to have stepped, on Dexter's death, 
in 1816. 

"For several years," said Joseph Story, "he passed his winters 
in Washington under engagement in many of the most important 
cases. Rarely did he speak without attracting an audience com- 
posed of the taste, the beauty, the wit and the learning that 
adorned the city." Just before his death he argued for the State 
of Virginia, with St. George Tucker, the great case of Martin v. 
Hunter's Lessee, in which Judge Story settled, against Dexter's 
contention, the power of the Federal Supreme Court to review 
the decision of a State Court on writ of error. Like John Mar- 
shall, Dexter relied on his supreme power of reasoning rather 
than on precedents and citation of cases. So much was this 
his habit that William Plumer relates an argument used by him 
in a case against Parsons which might almost be thought the argu- 
ment of one of the unlearned lawyers of the times. 

"The law in this case is as I have explained it"; said Dex- 
ter, "and it lies, as your Honors see, in the compass of a nut- 
shell. My brother Parsons has here a basket full of law books ; 
and he will endeavor to show from them that it is all the other 



(i) For the best, though incomplete, sketch of Samuel Dexter, see 
Reminiscences of Samuel Dexter, by Lucius Manlius Sargent ("Sigma") 
(1857)- 



262 HARVARD LAW SCHOOL. 

way. But one plain dictate of common sense, one clear maxim 
of the common law, is worth a cartload of such rubbish."(i) 

Says Professor Parsons, "He was not a scientific lawyer but 
he was a great lawyer in rem. . . . As an advocate in cases 
which demand a close investigation of complicated facts and rules 
and a clear perception and a strong hold of the guiding principle 

. . . and in the power to carry the court and jury with him 
through the long research or argument I am confident that he 
was never surpassed in New England." . . . 

"He had a disinclination," said Story, "to blacklettered law, 
which he sometimes censured as the scholastic refinements of 
monkish ages ; and even for the common branches of technical 
science, the doctrines of special pleading, and the niceties of 
feudal tenure he professed to feel little of love or reverence. . 

. . In commercial causes, he shone with peculiar advantage. 
. Though he might be wrong upon authority and prac- 
tice, he was rarely wrong upon the principles of international jus- 
tice. No man was ever more exempt from fineness or cunning 
in addressing a jury. He disdained the little arts of sophistry 
or popular appeal. It was in his judgment something more 
degrading than the sight of Achilles playing with a lady's dis- 
taff." 

Perhaps the best and liveliest description of his manner as a 



(i) Daniel Appleton White, who was born in 1776, graduated at Har- 
vard in 1797, a classmate of Horace Binney, Asahel Stearns, and Chief 
Justice W. M. Richardson of New Hampshire, and later Judge of Pro- 
bate for Essex county, wrote May 5, 1804. (See Mass. Hist. Soc. Proc., 
Vol. VI [1862].) 

"I have passed two days at court and had the satisfaction of hearing 
Parsons & Dexter in the Crowningshield case. Each of them delivered 
a most learned and ingenious argument. Dexter had the weaker side, 
and therefore made greater exertions, and took up more time ; but as the 
case turned on points of law rather than facts, Parsons appeared more 
eminently to advantage as a lawyer. He is indeed a wonderful man. Perfectly 
at home in all sorts of law, as well as of other knowledge and learning, 
he appears to be incapable of surprise or embarrassment ; whereas Dex- 
ter for his deficiency in some of the sciences, and perhaps in some 
branches of the law is exposed to both ; but his astonishing presence of mind 
and his intuitive perception and penetration secure him .a safe and hon- 
orable retreat for every difficulty. These two men I believe to be the 
greatest among the lawyers of New England ; yet they are very different. 
Both are subtle, ingenious, powerful in argument ; but, in the one, it 
seems to proceed from native strength and quickness of genius ; and in 
the other from a long and labored culture of his genius and logical pow- 
ers. On subjects of equity and in addresses to the feelings or discussions 
of general policy Dexter may be superior, but nowhere else. Parsons is 
the great lawyer perhaps the greater man. He is certainly the safer 
model." 



MASSACHUSETTS BAR. 263 

lawyer is found in Story's letter to his wife March 10, 1814, 
describing the contests between William Pinkney of Maryland 
and Dexter, in a series of prize cases: 

I must, however, after all, give the preference to Mr. Pink- 
ney's oratory. He is more vivacious, sparkling, and glowing; 
more select and exact in his language, more polished in his style, 
and more profound and earnest in his judicial learning. Mr. 
Dexter is calm, collected, and forcible, appealing to the judgment. 
Mr. Pinkney is vehement, rapid, and alternately delights the fancy 
and seizes on the understanding. He can be as close in his logic 
as Mr. Dexter when he chooses ; but he can also step aside at 
will from the path, and strew flowers of rhetoric around him. 
Dexter is more uniform, and contents himself with keeping you 
where you are. Pinkney hurries you along with him, and per- 
suades as well as convinces you. You hear Dexter without 
effort ; he is always distinct and perspicuous, and allows you 
an opportunity to weigh as you proceed. Pinkney is no less 
luminous, but he keeps the mind on the stretch, and you must 
move rapidly or you lose the course of his argument. 

Besides the above, the following lawyers were distinguished at 
the Bar during the first quarter of the iQth Century William 
Prescott(i); Christopher Gore(2) ; Charles Jackson (3) ; Ed- 
ward St. Loe Livermore( 4) ; William Sullivan ( 5) ; Samuel 
Hoar(6); Artemas Warcl(7); and John Phillips(8), all of 
whom were Federalists. 



(1) One of Parsons' "most valued friends", and a lawyer of great 
depth and soundness of learning and exclusive devotion to law was 
William Prescott of Salem. He was also the friend of young Joseph Story, 
the father of William H. Prescott the historian, and the father-in-law 
of Franklin Dexter. Born in 1762, a Harvard graduate in 1/83, he was 
a favorite maritime and insurance lawyer. It was in his office, in 1815, 
that Theophilus Parsons the younger (later Professor in the Harvard Law 
School) studied. Of him Story wrote in 1820, in his article on Chancery 
Jurisdiction, "his cautious, well instructed, modest and powerful mind 
would adorn an equity bench and create an equity bar for Massachusetts, 
equal to the Chancery Court of James Kent." 

(2) Born in 1758, a Harvard graduate of 1776, a student of law in the 
office of John Lowell, United States District Attorney in 1790, a Commis- 
sioner of the United States to London on the British Spoliation Claims, 
Governor of Massachusetts in 1809, United States Senator in 1814. 

(3) Born in 1775, a Harvard graduate of 1795, a student of law in 
the office of Theophilus Parsons, Judge of the Massachusetts Supreme 
Court in 1813. 

"Of all my pupils," said Parsons, "no one has left my office better fitted 
for his profession. He will prove himself the American Blackstone." 
(See Life of Charles Jackson in Lain' Reporter, Vol. XIII). 

(4) Born in 1762 in Portsmouth, New Hampshire, a student of law 
in Theophilus Parsons' office. Judge of the New Hampshire Supreme 
Court in 1799, and afterwards practising law in Boston, especially in 
maritime cases. 



264 HARVARD LAW SCHOOL. 

Lined up sharply on the anti-Federalist side of the Bar were 
Levi Lincoln(i); Daniel Davis (2) ; George Blake(3) ; John 
Quincy Adams (4) ; Perez Morton (5) ; and greatest of all 
Joseph Story (6). 

Among the noted lawyers in other parts of the State were Eli 
P. Ashmun, Elijah H. Mills, Samuel Howe, Caleb Strong, Tim- 
othy Bigelow, and Samuel Dana, Jr. ; and the offices of these 
members of the Bar outside of Boston were in fact, in most 
instances, miniature law schools, as students often came from 
the surrounding countryside to reside in the towns where these 
law offices were located. 

Among the members of the Bar just coming into practise, in 
1815, were Lemuel Shaw (7) ; Marcus Morton (8) ; Charles G. 
Loring(9) ; Peleg Sprague(io) ; William Minot(n) ; and Frank- 
lin Dexter (12). 

In 1816, Daniel Webster (13) came to Boston to practise law, 



(5) Born in 1774, a son of James Sullivan, Harvard graduate 1792, 
studied law with his father. 

(6) Born in 1776, Harvard 1802, a student in the office of Artemas 
Ward, for many years the leader of the Middlesex County Bar. 

(7) Born in 1762, Harvard 1/83, brother-in-law of Samuel Dexter, 
Chief Justice of the Court of Common Pleas in 1821. 

(8) Born in 1770, Harvard 1788, Judge of the Court of Common Pleas 
in 1809, first Mayor of Boston in 1822. 

(1) Born in 1781, a Harvard graduate of 1800; his name appears 
first in 1810 in the case of Young ?/. Adams, 5 Mass. 162, a case involv- 
ing the sum of $5. He had an office with Thomas O. Selfridge, the 
defendant in the noted murder trial described infra. In 1820, he took as 
a partner Sidney Bartlett, and was Chief Justice of Massachusetts 1830- 
1860. 

(2) Born in 1/84, a Brown graduate 1804, a student at Litchfield Law 
School, Judge of the Massachusetts Supreme Court in 1825, Governor in 
1840. 

(3) Born in 1794, Harvard 1812. a student at the Litchfield Law 
School and in the office of Charles Jackson. 

(4) Born in 1793, Harvard 1812, student at Litchfield Law School. 

(5) Born in 1783, Harvard 1802. 

(6) Born in 1793, son of Samuel Dexter, Harvard 1812, a student 
in the office of Samuel Hubbard. 

(7) Born in 1749, a Harvard graduate 1772, U. S. Atty. Gen. 1801- 
1805. 

(8) Born in 1762, a student under Shearjashub Bourne, Solicitor Gen- 
eral of Massachusetts 1800-1832. 

(9) Born in 1769, Harvard 1789, a student under James Sullivan, 
U. S. Dist. Atty. 1801-1829. 

(10) Born in 1762, Harvard 1787, a student under Theophilus Par- 
sons. 

(u) Born in 1751, Harvard 1791, Mass. Atty. Gen. 1810-1832. 

(12) Born in 1779, Harvard 1798, Judge of United States Supreme 
Court 1811. 

(13) Born in 1782. 



MASSACHUSETTS BAR. 265 

having been admitted to the Suffolk Bar in 1805, and before the 
United States Supreme Court in the winter of 1813-14. 

It is curious to note how closely connected with the history 
of Harvard College were all the leaders of the Bar. 

Theophilus Parsons was the first lawyer to receive an offer of 
a Harvard law professorship, and was a member of the Corpora- 
tion, from 1806 to 1812. John Lowell the elder was the first 
lawyer to be a member of the Corporation, from 1784 to 1802. 
Fisher Ames was tendered the Presidency of the College in 1805. 
Josiah Quincy was an Overseer from 1810 to 1824 and became 
President of the College in 1828. Harrison Gray Otis was an 
Overseer from 1810 to 1825 and a member of the Corporation 
from 1823 to 1825. Christopher Gore, Governor of the Com- 
monwealth, was an Overseer from 1810 to 1815, a member of 
the Corporation from 1813 to 1820, and the benefactor who 
made possible the College Library. William Prescott was an 
Overseer from 1810 to 1821, and a member of the Corporation 
from 1820 to 1826. Isaac Parker \vas an Overseer from 1816 
to 1830, and the first Law Professor. Charles Jackson was Over- 
seer from 1816 to 1825 and a member of the Corporation from 
1825 to 1834. Joseph Story was an Overseer from 1818 to 1825, 
a member of the Corporation from 1820 to 1845, tne fi rst Dane 
Professor of the Law School in 1829. Samuel Dexter was an 
Overseer from 1810 to 1815. 

John Quincy Adams was an Overseer from 1830 to 1848, and 
also Professor in Rhetoric, Oratory and Elocution from 1806 to 
1809. John Phillips was an Overseer from 1810 to 1823 and a 
member of the Corporation from 1812 to 1823. 

Daniel Webster was an Overseer from 1822 to 1852. John 
Lowell the younger was an Overseer from 1823 to 1827, a mem- 
ber of the Corporation 1810 to 1822. Of the later generation 
Lemuel Shaw and Charles G. Loring were members of the 
Corporation; the one from 1834 to 1861, the other from 1838 
to 1857. 

Such w r as the Bar, by whose influence the early students of 
the Law School were surrounded, and after a preparatory course 
in whose offices many students entered the School. 



CHAPTER XIII. 
JOSEPH STORY. 

Joseph Story was born in Marbleheacl, Mass., on September 18, 
1779, the son of Dr. Elisha Story and Mehitable (Pedrick) 
Story. ( i ) 

"My father", wrote Story, (in his autobiographical letter) 
"was a sturdy Whig and took a very early and active part in all 
the revolutionary movements. He was one of the Indians who 
helped to destroy the tea in the famous Boston exploit. He did 
not receive a public education, owing, I believe, to his father's 
very religious opinions which would not suffer him to go to 
Harvard College, lest he should there inbibe those heretical tenets 
which, in the form of Arminianism, were supposed to haunt those 
venerable shades." . . 

In 1770, Dr. Story removed from Boston to Marblehead. He 
fought at Concord and Lexington, and beside Warren at Bunker 
Hill as an army surgeon, and continued in the army until the 
close of the year 1777, when he retired "being disgusted with the 

management of the medical department To the very 

close of his life he entertained the highest admiration of Gen- 
eral Washington and of John Adams, though in the political con- 
troversies between the latter and Air. Jefferson, he took side 
with Mr. Jefferson." 

The little rock-perched town of Marblehead which was the 
home of Joseph Story's early years was strongly individual in its 
character, and nurtured strong men. 

Its people were almost wholly engaged in the fisheries or in 
the navy and privateering ; and they had the plain, rugged, 
hearty natures which belong to seafaring men. As his father was 
a physician, it was natural that Story should have been brought 
up in close familiarity with all his fellow townspeople; and it 
is small wonder that the intimacy with the sailors of Marblehead 



(i) This chapter is largely based on the Life and Letters of Joseph 
Story, by William Wetmore Story (1851) ; and wherever, later in this his- 
tory, letters of Story are quoted they are cited, unless otherwise stated, 
from the above Life. 



JOSEPH STORY. 267 

turned his thoughts, in later life, with especial love and depth of 
research to the study of maritime law. To become the great judge 
of prize and admiralty law was only his birthright. 

An amusing anecdote is told of his intimacy, in his practice, 
with the peculiarities of Marblehead dialect and provincialism : 

On one occasion, when some of our fishermen were in court to 
settle a mutiny, which had taken place on the Grand Bank (of 
Newfoundland), one, on being called upon to state what he 
knew, said, that the skipper and one of his shipmates had what 
he called a "jor of ile". The presiding judge in vain endeavored 
to get a more intelligible answer, and finally Story was called 
upon as usual to act as interpreter to his townsman, which he 
immediately did, telling the Court, that a "jor of ile", in the 
Marblehead dialect was, a "jaw awhile;" which, being inter- 
preted, meant, that the two men abused each other grossly for 
sometime. 

Of his enormous capacity for absorbing knowledge, Story 
showed early proof. At the age of fifteen, he presented him- 
self for examination for Harvard College, at the beginning of the 
six weeks' vacation before the January Term. Learning to his 
surprise that he would be obliged to qualify, not only on the pre- 
paratory studies, but also on all the studies which the freshman 
class had been pursuing for the past six months, he set to work 
at this task. In the six weeks he mastered the six months' work, 
and was admitted into the freshman class in January, 1/95. 
Among his classmates were William Ellery Channing, later the 
noted Unitarian minister, Sidney Willard, Richard Sullivan, Ste- 
phen Longfellow, Joseph Tuckerman, and Samuel P. P. Fay, 
later Judge of the Probate for Middlesex County. 

The scantiness of a college education at that period is well illus- 
trated in Story's account : 

In Greek we studied Xenophon's Anabasis and a few books 
of the Iliad; in Latin, Sal lust and a few books of Liry; in math- 
ematics, Saunderson's Algebra, and a work on arithmetic; in 
natural philosophy, Enfield's Natural Philosophy, and Ferguson's 
Astronomy; in rhetoric, an abridgement of Blair's Lectures, and 
the article on rhetoric in the Preceptor ; in metaphysics, Watt's 
Logic and Locke on the Human Understanding; in history, Mil- 
lot's Elements; in theology ,Doddridge's Lectures; in grammat- 
ical studies, Loivth's Grammar. . . . No modern language 
was taught, except French, and that only one day in the week by 
a non-resident instructor. . . . Even in respect to English 



268 HARVARD LAW SCHOOL. 

literature and science, we had little more than a semi-annual 
importation of the most common works, and a few copies sup- 
plied and satisfied the market. The English periodicals were 
then few in number ; and I do not remember any one that was 
read by the students except the Monthly Magazine (the old 
Monthly), and that was read but by a few. I have spoken of 
our semi-annual importations ; and it is literally true, that two 
ships only plied as regular packets between Boston and London, 
one in the spring, and the other in the autumn, and their 
arrival was an era in our college life. . . . The students had 
no connection whatever with the inhabitants of Cambridge by 
private or social visits. There was none between them and the 
families of the President and Professors of the College. The 
regime of the old school in manners and habits then prevailed. 
The President and Professors were never approached except in 
the most formal way, and upon official occasions ; and in the 
college yard (if I remember right) no student was permitted to 
keep his hat on if one of the Professors was there. . . . The 
intercourse between the students and Boston, when my class 
entered college, was infrequent and casual. West Boston Bridge 
had been completed but a short period before. The road was then 
new and not well-settled, the means of communication with Cam- 
bridge almost altogether by walking; and the inducements to 
visit in private circles far less attractive than at present. Social 
intercourse with the young, and especially with students, was not 
much cultivated ; and invitations to parties in Boston rarely 
extended to college circles. 

It was in his College days that Story developed a strong lean- 
ing towards Unitarianism long before the doctrines were gener- 
ally preached. He also had a taste for versification, which he 
cultivated throughout his life, even when on the bench. The Col- 
lege at this time was Federalist, root and branch, and "Adams and 
Liberty" cockades were everywhere worn by the students, as 
symbols of loyalty to the government and of hatred to France. (i) 



(i) J. T. Buckingham in his Specimens of Newspaper Literature with 
Memoirs (1850), writes: "The year 1798 has been signalized by the 
opponents of Adams' administration as the 'era of the Black Cockade.' 

. . . Benjamin Russell it has been said was the instigator of the 
fashion; the first allusion to it that I remember being in the Centinel of 
July 4 as follows 'It has been repeatedly recommended that our citi- 
zens wear in their hats on the day of independence the American cockade 
which is a rose composed of black ribbon with a white button or fasten- 
ing this symbol of their attachment to the government which cherishes 
protects them. The measure is innocent ; but the effect will be highly 
important. It will add cement to the Union.' The next Centinel says 
'The Jacobins have the impudence to say that the people of Boston were 
really divided, and they gave as a proof that not more than half of them 
wear the American cockade. This being the case, let every Bostonian 



JOSEPH STORY. 269 

Even Story, though son of a Jeffersonian, was drawn into sup- 
port of Adams in his senior year a curious memory for him, in 
his later struggles against Federalist opposition. 

In 1798, after graduation, he returned to Marblehead to study 
law in the office of Samuel Sewall, then a member of Congress, 
and later Chief Justice of Massachusetts. He embraced the 
Common Law, however, not without a shudder. "Conceive, my 
dear fellow," he wrote to his friend Fay, Sept. 6, 1798, "what 
is my situation, doomed to spend at least ten years, the best of 
my life, in the study of the law a profession whose general 
principles enlighten and enlarge, but whose minutiae contract and 
distract the mind. Ambition is truly the food of my existence, 
and for that alone life is desirable". Even in the height of this 
"ambition" the young law student could hardly have anticipated 
that in only three years more than the "at least ten", he would 
be sitting on the bench of the Supreme Court of the United 
States. Again he writes, "I have begun the study of the law, and 
shall continue it with unremitting diligence ; but a sigh of regret 
often accompanies my solitary moments a sigh expressive of 
my ardent love of literary fame." Again, in 1799, "Law I admire 
as a science; it becomes tedious and embarrassing only when it 
degenerates into a trade, I regret the necessity of any profession 
because it infringes on those studies which a citizen of the world 
would like to pursue." By 1801, however, this "regret" had 
changed to a complete love of his profession. "The science claims 
me as a fixed devotee it rules me", he wrote. 

When he was twenty-one, Story was deputed by the town of 
Marblehead to deliver the eulogy on the death of Washington, 
"an elegant address" so the Columbian Centinel called it; 
"poor and in bad taste", as described by Story himself. 

In January, 1801, the month and year of Chief Justice Mar- 
shall's appointment, he entered the office of Samuel Putnam (later 
Judge of the Supreme Court of Massachusetts), in Salem. 

As a Republican, he was looked upon by the Federalists, who 
composed the principal part of the wealth and talent of the town, 
with doubt and distrust; and as a person entertaining dangerous 
ideas, and he was, at first, tabooed from society. His Unitarian 

attached to the constitution and government of the United States imme- 
diately mount the cockade and swear that he will not relinquish it until 
the infamous projects of the external and internal enemies of our country 
shall be destroyed.' " 



270 HARVARD LAW SCHOOL. 

views were also considered by many as closely allied to atheism. 
"Continual reports," he writes, "are being circulated of my being 
a deist, a defender of suicide, an eccentric phenomenon, a violent 
Jacobin". Still his devotion to the law and his sweetness of char- 
acter began to win him friends, and many who objected to his 
politics could not resist his manners. As a matter of fact, his 
political biases were of the mildest. "The late Administration 
(Adams)", he writes, in 1801, "has always been the theme of my 
praise; though, in some individual measures, my judgment has 
differed from that of more enlightened statesmen, yet I must also 
declare that I have never for a moment believed Mr. Jefferson 
to be an enemy to his country, nor his conduct proved criminal." 

In July, 1801, he was admitted to the Essex Bar, and opened 
an office in Salem. 

"All the lawyers and all the judges in the County of Essex were 
Federalists", he writes, "and I was the first who was obtruded 
upon it as a political heretic. I was not a little discouraged. 

. . . For some time I felt the coldness and estrangement 
resulting from this known diversity of opinion and was left 
somewhat solitary at the Bar. I do not mean that I was treated 
by anyone with harshness or unkindness, but I was in a great 
measure excluded from those intimacies which warm and cheer 
the intercourse of the profession." 

In the Salem Gazette of November 12, 1802, appeared an edi- 
torial which illustrates the conditions of the times in Salem: The 
editor states that on the Saturday evening previous, two gentle- 
men by the name of Crowningshield, and Mr. Joseph Story, 
called at his house and requested a private interview. Having 
been seated, the gentlemen informed him that they had come 
on unpleasant business, namely, certain publications in his paper 
abusive of them and their friends. "Mr. Story complained that 
he had been placed before the public in an injurious point of 
view that he was a young man, come into the town to gain a 
livelihood in an honorable way that he ought to receive coun- 
tenance and protection from the community that his expressing 
his political sentiments with freedom was perfectly justifiable 
that he had no objection to his arguments being fairly combated, 
but that he would not submit to be arraigned before the public 
in the manner he had been."(i) 

(i) See J. T. Buckingham's Specimens of Newspaper Literature, with 
Memoirs (1850). 



JOSEPH STORY. 271 

Such however was Story's evident ability, that even ardent 
Federalists like William Prescott, one of the leaders of the Bar, 
and Judge Sewall, were forced to admit that political ostracism 
could not last long. "It is in vain", said Sewall to Chief Justice 
Parsons, "to attempt to put down young Story. He will rise, 
and I defy the whole Bar and Bench to prevent it." 

"Gradually business flowed in on me, however," wrote Story 
in his own memoirs, "and as I was most diligent and laborious 
in the discharge of my professional duties I began in a year or 
two to reap the reward of my fidelity to my clients. From that 
time to the close of my career at the Bar, my business was con- 
stantly on the increase ; and at the time I left it, my practice was 
probably as extensive and lucrative as that of any gentleman in 
the county". 

In 1803, he was appointed by Jefferson as Naval Officer 
of the Port of Salem, which position he declined, in a letter, 
speaking of "having suffered no small portion of abuse and com- 
bated no small portion of oppression", but feeling that "though 
I may meet with obstacles from political hostility, it would be 
with real regret that I should quit my profession of the law". 
Later, in 1805, to a Baltimore friend, who urged him to move to 
that city, he again wrote of the "petty prejudices and sullen cool- 
ness of New England. Bigoted in opinion and satisfied in forms, 
you well know that in ruling points they too frequently shut the 
door against liberality and literature." 

A single anecdote of this period of life as related by his son 
W. W. Story, reveals the source of his later greatness as a judge. 

In Rust v. Low (6 Mass. 90), he was retained as junior coun- 
sel with Nathan Dane for the defendants, against William Pres- 
cott, for the plaintiff. 

When this case was about to come on, Mr. Prescott said to my 
father, "we shall beat you, Lord Hale is against you," alluding 
to a note by that great lawyer to Fitzhcrbcrfs Natura Brcvium, 
(128). This note had not escaped the observation of rny father, 
and satisfied that the passage in Fitzherbert had been misunder- 
stood by Lord Hale, he had explored all the black-letter law on 
the subject, and had translated nearly thirty cases from the Year 
Books, to show what the mistake was, and how it arose. At the 
argument, the note to Fitzherbert having been cited on the other 
side as clearly expressing the rule of the common law, my father 
in opening said, "I think I shall satisfy the court that Lord 
Hale is mistaken." "What, Brother Story," said Chief Justice 



272 HARVARD LAW SCHOOL. 

Parsons; "you undertake a difficult task." "Nevertheless", was 
my father's reply, "I hope to satisfy your Honor, that he has 
really misapprehended the authorities on this point." He then 
proceeded to explain the mistake, and so strongly fortified his 
position by the cases from the Year Books as to satisfy even 
the opposing counsel, that Lord Hale had misconstrued the pas- 
sage in Fitzherbert. ... In the judgment of the court, after- 
wards pronounced in Suffolk, the Chief Justice, without giving the 
slightest credit to counsel for the argument, or for any sugges- 
tion as to Lord Hale's mistake, went through the demonstration 
of the error, and cited the authorities, as if he had discovered it 
himself, somewhat to the amusement of those who were in the 
secret. 

At this time, he undertook, but never completed, the task of 
making a digest, supplementary to Comyns. The subjects of 
Insurance, Admiralty and Prize were among those finished(i). 

He also compiled a work on Pleading in 1805 ; and edited Chitty 
on Bills and Notes in 1809, Abbott on Shipping in 1810, and 
Laives on Pleading in Assumpsit in 1811. 

By the time he was twenty-six, Story was retained as counsel 
in cases in adjoining States, and especially in New Hampshire. 
In this first case in that State, he was opposed to Samuel Dex- 
ter of Boston and the great Jeremiah Mason, then the leader 
of the New Hampshire Bar. "My learned opponents", he wrote, 
"brought a weight of eloquence and argument which seemed 
destined to crush me. The jury, rather against the charge of the 
court, found a verdict in my favor. I have ever thought that the 
jury felt some sympathy for me in this embarrassed situation, 
and listened to my appeals, as one strong in faith, however want- 
ing in professional skill." 

The case brought him the cordial friendship of Mason, which 
lasted till his death. 

Elected to the legislature in 1805, Story as one of the few 
Republican lawyers, was pushed forward to prominence in debate. 
He was especially active in advocating a bill providing more 
adequate salaries for the Supreme Court Judges, ($2500 instead 
of $1200 for the Chief Justice) ; although Chief Justice Parsons 
being at that time, like all the judges, a Federalist, Story was 
denounced by his party newspapers for his course. 



(i) The manuscript of this work in three thick folio volumes, be 
presented later to the Harvard Law School. 



JOSEPH STORY. 273 

But though an ardent Republican, Story was, so he writes, 
"always liberal, a believer in the doctrines of Washington, and 
little infected with Virginia notions as to men or measures"- 
one of these Virginia notions being a distrust of the courts and 
judges. 

In 1808, he defended, in the Legislature, Jefferson's embargo 
policy, against Christopher Gore and the solid "Boston phalanx". 
In the same year, as chairman of a committee, he wrote an elab- 
orate report in favor of the creation of a Court of Chancery in 
Massachusetts; but the prejudice in that State against equity 
jurisdiction was so strong that the report had no effect. The 
equity powers having been exercised by the old royal governors, 
were considered as an attribute of royalty, and a means of 
tyranny, and it was many years before Massachusetts consented 
to give full chancery jurisdiction to its Supreme Court. Visits 
to New York and Washington in 1807-1808, enabled Story to see 
something of the Bar of other States. He visited the New York 
Supreme Court, sitting at City Hall, and was struck by Chief 
Justice Kent's celerity and acuteness. "He seems to be a good 
lawyer and despatches business with promptness. . . . On 
the whole, if he be not a very great man, I am satisfied he is 
not humble in his acquirements. He has the confidence of a great 
lawyer in all his actions, and is self poised on his own resources," 
he wrote; and he referred to the Bar of New York, as "it is 
confessed not to be equal to what it has been. Its splendor has 
been obscured since Burr, Livingston, and Hamilton have 
departed", and he is satisfied that "Massachusetts has legal talents 
and juridical learning equal to any of her sisters on this side of 
the Delaware. What lies beyond is now but speculation." In 
Baltimore he met all the great lawyers, except Luther Martin. 
"They do not look like black lettered scholars of the Inns of 
Court; but are pleasant and frank in their manners, and, as I 
understand, well versed in the general subjects of juridical con- 
sideration." With Robert Goodloe Harper, he visited Judge 
Samuel Chase, whom he described : "In his person he is tall 
and not unlike Parsons. I suspect he is the American Thurlow 
bold, impetuous, overbearing and decisive." 

In 1808, Story was elected to Congress ; where one of his first 
acts was to advocate a modification of the Embargo Act, having 
become convinced of the evils which it was inflicting on New 

18 



274 HARVARD LAW SCHOOL. 

England. (i) Jefferson bitterly resented this move, and wrote 
to Henry Dearborn July 16, 1810(2): 

The Federalists during their short lived ascendancy have nev- 
ertheless by forcing us from the embargo inflicted a wound on 
our interests which can never be cured and on our affections 
which will require time to cicatrize. I ascribe all this to one 
pseudo-republican, Story. He came on (in place of Crownin- 
shield, I believe) and staid only a few days, long enough to get 
complete hold of Bacon who giving in to his representations 
became panic struck and communicated his panick to his col- 
leagues and they to a majority of the sound members of Con- 
gress. They believed in the alternative of repeal or civil war and 
produced the fatal measure of repeal. 

"The whole influence of the administration", Story w r rote to 
Edward Everett, "was directly brought to bear upon Mr. Ezekiel 
Bacon and myself, to seduce us from what we considered a great 
duty to our country, and especially to New England." 

Believing that "a continuance in public life was incompatible 
with complete success at the Bar," Story was not a candidate for 
re-election. The next year (1810), he went to Washington to 



(1) At the same time, Story was convinced of the extreme unwisdom 
of the policy of the New England Federalists. Jan. 3, 1809, he wrote to 
Capt. William Story : 

"I regret that there are factions in our country that are openly 
endeavoring to destroy the confidence of the people in the Constitution. 
It seems as if in New England the Federalists were forgetful of all the 
motives for union and were ready to destroy the fabric which has been 
raised by the wisdom of our fathers. Have they altogether lost the mem- 
ory of Washington's farewell address? 

The evasions of the embargo and the riotous proceedings in some towns 
in your neighborhood are truly distressful. No doubt they are occasioned 
by the instigation of men who keep behind the curtain and yet govern 
the wires of the puppet show. 

We are diligently employed in amending the Embargo laws ; but such 
are the perpetual clamors and obstructions interposed by the Federalists 
on every occasion that of necessity we move slowly. You can form no 
idea without being here of the continual embarrassments which we 
encounter. 

Besides it is not easy to devise a system perfectly suited to the object 
and yet unobjectionable. When every motion to amend is by the inflamed 
exaggeration of a few men presented to the public as prostrating the lib- 
erties of the people and such statements are believed, we must be cautious 
or our cause will be permanently injured. Still the Republicans are aware 
of the delay and regret, deeply regret it. They will advance with a firm 
step to the object, and if the Embargo should be continued guards 
of the strongest nature will encircle it." . . . 

See unpublished letter in Story Papers in possession of the Massa- 
chusetts Historical Society. 

(2) Writings of Thomas Jefferson, Vol. IX. 



JOSEPH STORY. 275 

argue the case of Fletcher v. Peck.(i) He served, however, once 
more in the Massachusetts Legislature ; and became Speaker of 
the House, in 1811. In the fall of that year (Nov. 18, 1811), 
Story, while still Speaker, and at the age of thirty-two years, 
received the appointment to the seat of Associate Justice of the 
Supreme Court of the United States. It came as a great surprise, 
and entirely without solicitation on his part. 

The seat had become vacant, in 1810, by the death of William 
Gushing, who had occupied it since the foundation of the court 
twenty-one years. President Madison had offered the position 
to Levi Lincoln (Attorney General under Jefferson) and to John 
Quincy Adams (then Minister to Russia), both of whom had 
declined. Finally, at the suggestion of Ezekiel Bacon, a fellow 
Congressman from Massachusetts, the tender was made to Story. 
Though the salary was only $3 500, and he had already a profession- 
al income of $5ooo-$6ooo, Story decided to accept. "The high 
honor attached to it, the permanence of the tenure, the respecta- 
bility of the salary, and the opportunity it will allow me to pur- 
sue what of all things I admire, juridical studies, have combined 
to urge me to this result." 

The appointment of Story w r as not received with general 
enthusiasm. Among his political opponents it was ridiculed and 
condemned "that Republican politician, Joe Story", as they 
called him. Others, by reason of his youth and active political 
course, augured a host of evil consequences. He was at this 
time only thirty-two years old the youngest judge on the bench, 
and, with the exception of Mr. Justice Buller on the King's 
Bench in England, the youngest man then ever called to highest 
judicial station in either country. 

Josiah Quincy, Jr. writes in his Figures of the Past: 

I remember my father's graphic account of the rage of the 



(i) The following letter from George Cabot to Timothy Pickering, 
Jan. 28, 1808, is interesting as coming from a vigorous political opponent. 
The "Georgia claimants" referred to in it were the parties involved in 
Fletcher v. Peck. 

"Mr. Joseph Story of Salem goes to Washington as solicitor for the 
Georgia claimants. Though he is a man whom the Democrats support, 
I have seldom if ever met with one of sounder mind on the principal 
points of national policy. He is well worthy the civil attention of the 
most respectable Federalists ; and I wish you to be so good as to say to 
our friend Mr. Quincy and such other gentlemen as you think will be 
likely to pay him some attention." 

See Life and Times of George Cabot, by Henry Cabot Lodge (1870). 



276 HARVARD LAW SCHOOL. 

Federalists when "Joe Story, that country pettifogger, aged 
thirty-two," was made a judge of our highest court. He was a 
bitter Democrat in those days, and had written a Fourth of July 
oration which was as a red rag to the Federal bull. It was under- 
stood that years and responsibilities had greatly modified his 
opinions, and I happened to be present upon an occasion when 
the Judge alluded to this early production in a characteristic way. 
We were dining at Professor Ticknor's, and Mr. Webster was of 
the party. In a pause of the conversation, Story broke out: "I 
was looking over some old papers this morning, and found my 
Fourth of July oration. So I read it through from beginning to 
end." 

"Well, sir", said Webster, in his deep and impressive bass, 
"now tell us honestly what you thought of it." 

"I thought the text very pretty, sir," replied the Judge; "but 
I looked in vain for the notes. No authorities were stated in the 
margin." 

The Supreme Court, in 1812, was composed of Marshall, 
Bushrod Washington of Virginia, William Johnson of South 
Carolina, Brockholst Livingston of New York, Thomas Todd of 
Kentucky, and Gabriel Duval of Maryland. William Pinkney 
was Attorney General. In a letter of February 16, 1812, Story 
wrote that, "the ermine rested upon my shoulders with more ease 
than I expected" ; and on February 24, "My brethren are very 
interesting men, with whom I live in the most frank and unaf- 
fected intimacy. Indeed, we are all united as one with a mutual 
esteem which makes ever the labors of jurisprudence light"; and 
on March 5, 1812, "Our intercourse is perfectly familiar and 
unconstrained, and our social hours are passed in gay and frank 
conversation." 

Story's active mind, however, was not content with the 
ordinary judicial labors. He at once took up constructive legisla- 
tion; and in May, 1813, he started a movement towards a Crim- 
inal Code for the United States, which finally resulted in the 
Federal Criminal Statutes, of two of which he was the author. 

In 1816, he received a tempting offer from William Pinkney 
(who had been appointed Minister to Russia), to retire 
from the Bench and take up Pinkney's practice then worth 
$21000 per year. Though his salary as a Judge was only $3500, 
Story declined. At this time, in addition to his other labors, he 
undertook to assist Henry Wheaton, the Supreme Court Reporter, 
in his elaborate notes on admiralty and patents, and also in a 
digest of the Supreme Court decisions. 



JOSEPH STORY. 277 

In 1817, he turned his mind to the great problem of legal edu- 
cation, and wrote his interesting and elaborate essay on the 
Growth and Expansion of the Common Law, as a review of Prof. 
David Hoffman's Course of Legal Study, then just published. And 
so in this year 1817 the year of the founding of the Harvard 
Law School Story's life came in touch with the great subject 
in connection with which his name is forever noted the teaching 
of the law. In 1818, he was elected an Overseer of Harvard Col- 
lege. From that year, his life may be best described in con- 
nection with the history of the Law School itself. 



CHAPTER XIV. 
ISAAC ROYALL AND ISAAC PARKER. 

To trace legal education at Harvard University to its earliest 
source, one must go back to the year 1781, two years after the 
birth of Story, one year after Marshall was admitted to the Bar, 
and the year in which Kent began to study law with Egbert 
Benson. 

In this year 1781, at Kensington in England, there died a Loy- 
alist refugee from Massachusetts, one Isaac Royall. 

To him belongs the credit of being the founder of the Har- 
vard Law School. 

He had been born at Antigua in the West Indies, in 1719; his 
father, a merchant of great wealth, having emigrated from Bos- 
ton. In 1738, the family returned to New England, where Isaac 
Royall fixed his residence in that part of Charlestown now known 
as Medford. He became a Justice of the Peace in 1753, and a 
Brigadier General of the Province in 1761. For sixteen years he 
was chairman of the Board of Selectmen of Medford. He rep- 
resented the town in the Legislature from 1743 to 1752, regularly 
returning his salary to the town treasury. In 1752 he was elected 
a member of the Governor's Council, which honorable office he 
held until 1774, travelling back and forth from Boston in his 
coach, the only one in his town. In Medford his father had 
built the fine old mansion which still stands in that city a house 
noted in colonial days for its elegance and richness of furnishing, 
and built on the model of an English nobleman's house in 
Antigua. 

Isaac Royall appears to have been a man of amiable and mild 
manners, popular with his neighbors, though a member of what 
might be termed the aristocracy of the Province. "He loved to 
give and loved to speak of it and loved the reputation of it," says 
the historian of Medford. (i) "Hospitality was almost a passion 
with him. No house in the colony was more open to friends ; no 
gentleman gave better dinners or drank costlier wines. As a 



(i) History of Medford, by Charles Brooks (1886). 



ISAAC ROYALL. 279 

master, he was kind to his slaves ; charitable to the poor and 
friendly to everybody. He kept a daily journal, minutely descrip- 
tive of every visitor, topic and incident, and even described what 
slippers he wore, how much tar water he drank, and when he went 
to bed." 

Two of his daughters married with distinction, George Erving, 
and Sir William Pepperell, both of whom became Loyalist refu- 
gees. Though declining appointment by the King as a Mandamus 
Councillor in 1774, in deference to the excited prejudices of the 
colonists against this usurpation of power by the King, his ten- 
dencies were all in favor of a peaceable settlement of the troubles 
between England and the Colonies. Timid of nature, 
fearful of the outcome of a Revolution, on the night before the 
battle of Lexington, without settling his affairs in Medford or 
taking any of his property with him, he hurried to Boston, and 
from there sailed for Halifax, and thence to England. His flight 
appears to have been due to his fears not that he loved the Col- 
ony less, but that he feared England the more ; and even at Hal- 
ifax he wrote home that he hoped to return soon. At first, his 
popularity saved him from the fate of his sons-in-law, whose 
property was at once confiscated under the "Conspirator's 
Act."(i) 

Finally his long delay in returning caused even his friends to 
turn against him. A hearing was held by the Medford Commit- 
tee of Inspection at which various persons testified as to his 
Tory sentiments; and as a result, on May 25, 1778, the Select- 
men certified to James Winthrop, Judge of Probate that, "Isaac 
Royall has absented himself for a term of upwards of three 
months leaving estates behind him to the value of more than 



(i) It is interesting to note the extreme measures taken by the Colony 
against the Loyalists, and also the class of men who composed them. 
Nearly 200 Loyalists were banished by name by the Government of 
Massachusetts, of whom more than 60 were graduates of Harvard. 

Of the five judges of the Superior Court, in 1775, only one (William 
Gushing) took the American side. 

The three statutes passed against the Loyalists were the Act of Sept., 
1778, to prevent return of certain persons therein named and others who 
have left this State or either of the U. S. and joined the enemies thereof; 
the Act of April 30, 1779, to confiscate the estates of certain notorious 
conspirators against the government and liberties of the late Province now 
State of Massachusetts Bay; the Act of Sept. 30, 1779, to confiscate the 
estates of certain persons commonly called absentees. 



280 HARVARD LAW SCHOOL. 

twenty pounds within this State, and from the best intelligence 
we can obtain we verily believe the said Isaac Royall voluntarily 
went to our enemies and is still absent from his habitation and 
without the State." "Whereupon Agency was granted to one 
Simon Tufts, of the estate of Isaac Royall Esquire who 
was an inhabitant of the Town of Medford but has fled to the 
enemies of the state for protection. "(i) 

An inventory of his property on Dec. 15, 1778, (Jan. 13, 1779), 
appraised his real estate at 50,701 pounds, seven shillings, four 
pence. (2) It is curious to note, in view of the interest shown 
by his will in the profession of the law, that only three law books, 
and several volumes of Journals of the General Assembly appear 
in this inventory. 

Some idea of his wealth may be gained from the fact that, in 
1781, the year of his death, his agent's account discloses the 
item of "Sales of furniture not already accounted for 35,082 
pounds, five shillings, ten pence ;" and an item by cash further 
of "Collector Carey for use and damage of furniture 1453 
pounds eight shillings nine pence." This sum even in those days 
of depreciated currency represents personal property of an extra- 
ordinary amount for a man who was not in any active busi- 
ness. (3) 

For several years, Royall, however, appears to have resented 
bitterly being classed as a traitor ; and in a letter, in 1779, he com- 
plained of the interference with his property, declaring that his 
sailing for Halifax was not voluntary, and that he had been 



(1) See Probate Records in South Middlesex Registry of Probate. 

(2) The "pound" in Massachusetts currency was slightly over a 
quarter less in value than the English pound. 

In January, 1778, the currency of Massachusetts had so depreciated that 
TOO dollars in coin was worth 325 dollars in bills. In 1779, 100 dollars 
in coin was worth 742 dollars in bills. 

(3) For an interesting account of the legal proceedings taken in 
reference to Loyalist estates and also for statement as to depreciation of 
money at the time see 

The Confiscation of John Chandlers Estate, by Andrew McFarland. 
Davis (1903). 

As an off set to the depreciation of the currency it is to be noted that 
as a rule the estates of the Loyalists were greatly undervalued by local 
appraisers. The author of the note entitled The Loyalists and Their For- 
tunes, in Volume VII of Narrative and Critical History of America, Mr. 
Justin Winsor says in a note (p. 212), "They (the Loyalists) com- 
plained of trickery, fraud and gross injustice practiced toward them here. 
The real value of their property was underestimated in the sworn invoices 
sent to them." 



ISAAC ROYALL. 281 

prevented from returning, solely by ill health. He also wrote 
at various times, expressing a wish to return to Medford, to 
marry again, and to be buried by the side of his wife, his father, 
and his friends. These wishes were never gratified, as he died 
before the end of the war, in 1781. 

His will proved the truth of his assertions, for it contained 
ample evidence of his retention of affection for his old home. He 
left legacies to most of his friends in Massachusetts and to the 
clergymen and church in Medford, a devise to that town of land 
for school and other public objects, and a devise of land to the 
town of Worcester. 

In his life time, though not a graduate of the College, he had 
been a liberal contributor towards the restoration of the Harvard 
College Library, after the burning of Harvard Hall in 1764: 
and at his death possibly with the idea of becoming a second 
Charles Viner, and bringing to light in America another William 
Blackstone, he made the following bequests to the revered insti- 
tution of the land of his old home. His will dated May 26, 
1778, and codicil of Nov. 31, 1779, read as follows: 

Item 12. ... All the remainder of said tract of land 
in said Granby containing eight or nine hundred acres more 
or less, also all my right in a tract of land in the county 
of Worcester containing in the whole nine hundred and 
twenty-eight acres which I bought of the Province of Massa- 
chusetts Bay on the twenty-eighth day of December 1752 
in Company with the Hon. James Otis, Esq., John Chand- 
ler, Esq., and Cap. Caleb Dane, I give devise and bequeath 
to the overseers and corporation of Harvard Colledge Cam- 
bridge in the county of Middlesex aforesaid, to be appropri- 
ated towards the endowing a Professor of Laws in said College, 
or a Professor of Physick and Anatomy, whichever the said over- 
seers and Corporation shall judge to be best for the benefit of said 
Colledge ; and they hereby shall have full power to sell said Lands 
and to put the money out to Interest, the income whereof shall 
be for the aforesaid purpose. 

Codicil Item 6. I give devise and bequeath to the Overseers 
and Corporation of Harvard College in Cambridge in the County 
of Middlesex in the Province of Massachusetts Bay in New Eng- 

* o 

land, but now by information called the State of Massachusetts 
Bay, Lott No. 104 containing two hundred acres in the above 
mentioned Royalston, and all my undivided land not heretofore 
bequeathed in said Royalston, to be appropriated towards the 
endowing of a Professor of Laws in said Colledge or a Professor 
of Physics and Anatomy, whichever the Overseers and Corpora- 



282 HARVARD LAW SCHOOL. 

tion of said College shall choose or judge to be best for the 
benefit of said College. ( I ) 

This property, so devised, was listed in the inventory of his 
estate as "a large tract of waste land in Granby and Royalton 
value unknown", and of a rentable value of two pounds. No 

(i) See Probate Records, Suffolk County Registry of Probate (Bos- 
ton). 

The will begins quaintly in the following language : "Kensington in the 
county of Middlesex in the Kingdom of Great Britain. In the name of 
God, Amen. I Isaac Royall late of Medford in the county of Middlesex 
called in the Province of Massachusetts Bay in New England when I left 
Medford aforesaid on the i6th of April, 1775. but now of Kensington 
aforesaid having divers estates in said Province of Massachusetts Bay but 
by information since called the State of Massachusetts Bay being now 
weak in body, but of a sound disposing mind and memory thro' the good- 
ness of almighty God I do make and ordain this my last will and testa- 
ment." 

The will is quoted inaccurately in Quincy's History of Harvard Univer- 
sity, Vol. II, p. 319. 

No notice as hitherto been taken of the fact that Royall's will container' 
other bequests to the College. Such is the fact however; and on Novem- 
ber 13, 1834, Professor Greenleaf, of the Law School, wrote to T. W. 
Ward, Treasurer of the College, calling his attention to these bequests, 
(See Harvard College Papers, Vol. VII, 2nd Series, p. 272) as follows: _ 

"In igth item, he devises bulk of the estate to divers branches of his 
family in remainder, and on failure of issue, one half to be applied for a 
hospital in Medford, and the other half to the support of a Professor of 
Laws in Harvard College. 

In item he provides, that after the line of Harriett Pepperell shall be- 
come extinct, no other devisee shall succeed to the estate given to her, 
till he shall have given bond to the Treasurer of Harvard College for the 
payment of 10 pounds sterling per annum, to be applied for the support of 
students. 

I suggested to the President the expediency of instituting some inquiry 
into the condition of these estates at present, and of placing the result on 
file, as a basis of future measures, if need should require." 

The matter was referred to W. I. Bowditch, a distinguished convey- 
ancer, who reported that the testator left a daughter, Mary Mclntosh Erv- 
ing, wife of George Erving, and grandchildren by his son-in-law, Sir Wm. 
Pepperell, who died in England in 1812, viz. Mary Hurst Mclntosh Pep- 
perell, Elizabeth Royall Pepperell, Wm. Pepperell and Harriett Pepperell. 
Mr. Bowditch further wrote that : 

"Isaac Winslow Esq. of this city says that the son died before the 
father, and that the three daughters are all married, one to Mr. Hutton, 
one to Sir Charles Palmer, and one not recollected, that it is his strong 
impression that Mr. Hutton has a large family of children. And he is not 
certain that the others have not likewise. 

Now the College is not to get these 10 pounds a year till all these parties 
are dead without issue, and in case of all of them are dead with issue, 
there is still such an endless series of collateral relations, who are named 
in the will as entitled before the College and hospital, that I think the re- 
sult amounts to this : 

That there can hardly be the remotest possibility that the college can 
ever get more than the 10 pounds a year; that the contingency has not 
occurred when the College is entitled even to that. Nor is there any 
immediate likelihood that it would happen if Mr. Win slew's impressions 
are correct." 



ISAAC ROYALL. 283 

attention was apparently paid by the College to this bequest, until 
about 1795, when it engaged counsel to find out where this land 
was located(i). Then it was discovered, as might have been 
expected in the long lapse of time, that some of the lands had 
been sold for taxes, others were occupied by squatters, on others 
much "strip and waste" had occurred, on others the title of the 
College was disputed, and the occupiers refused to give up pos- 
session. Some of the land was not identified until 1796 and 
1797. (2) 

The 800 acres in Granby were sold in 1796 for $2000. In 1808, 
133 acres in Winchendon were sold for $837.90; in 1809, 250 
acres in Westminster were sold for $100. The proceeds were 
allowed to accumulate at six per cent, interest until in June 1815 
the principal fund was $7592.50 and the income, $432.27. (3) 

It was at this time, 1815, twenty-nine years after the pro- 
bate of Royall's will that the first move was made to utilize the 
bequest. An unsuccessful attempt had been made by the Col- 
lege to establish a Professorship of Law within a few years after 
Royall's death; but this had no connection with the Royall 
bequest, of the value of which it had, at the time, practically 
no knowledge. No official record or account of this attempt is 



(1) See Harvard College Archives, Miscellaneous Lands Vol. I. 
Letter of Ebenezer Storer, Treasurer, to Daniel Forbes, March 14, 1/95; 
letter from Daniel Forbes from Worcester, March 20, 1795, to Ebenezer 
Storer stating that "I have found the piece of land willed to the college 
by Col. Ryol lying in the county of Middlesex" and that it had been 
partitioned by the Probate Court. 

See also letters from Simeon Strong, Dec. 20, 1794, February 22, 1795, 
March 19, 1795, stating that he has enquired as to values and that the lands 
might be sold for 10 shillings per acre; letter of Joseph Eastman, August 

ii, 1795- 

(2) See letter of Simon Houghton to Storer, Sept. 3, 1796; letter of 
William Robins, April 30, 1796; letter of Elisha Tucker, Jan. 23, 1797. 

(3) See Ledger Accounts / the Treasurer of Harvard College. 
Professor Joel Parker in his pamphlet on The Law School of Harvard 

College published in 1871, stated: "In 1815 by some mismanagement, as 
I have heard, the nature of which I did not learn, the fund amounted to 
less than $8,000." 

This was undoubtedly erroneous ; for there appears to have been no 
evidence of mismanagement. 

In Harvard College Papers Vol. IV., p. 28, is a letter from President 
Willard to Treasurer Storer, March 18, 1801, as follows: 

"Enclosed is the extract from the will of the late Honorable Theodore 
Atkinson, Esquire, which you desired. I have also sent an extract from the 
will of the late Honorable Isaac Royall, Esquire, by which you will see 
that the money arising from the sale of the lands in Granby ought to be 
put among the appropriations in vour annual accounts and to have inter- 
est." 



284 HARVARD LAW SCHOOL. 

extant; but it is mentioned by Professor Parsons, in his Memoir 
of his father, Theophilus Parsons(i): 

A letter of the late Governor Sullivan, written to a friend, in 
1785, says that my father had received an appointment as Pro- 
fessor of Law in Harvard University. Unfortunately there is no 
evidence of this to be derived from the College records, but from 
what I am told of the usages of the Corporation at that time, I 
suppose that the appointment was offered to my father, but not 
being accepted by him, it did not appear upon the records as a 
formal vote. 

The next suggestion for the study of law at Cambridge came, 
curiously enough, from a layman, the noted Anti-Federalist 
pamphleteer, Benjamin Austin, who wrote, in 1786, in one of his 
series of papers directed against the evils of the legal profession, 
the following(2) : 

My principles are to make the study of the law respectable and 
beneficial. For this purpose we should introduce the study at our 
University; a professor of law should be established, and the 
youth should be early taught the fundamental principle of our 
laws; and from this knowledge, (with small attention) they 
would become qualified to take the important station of judges. 

This answers the question, "If we check the lawyers from 
whence are to come the judges?" 

It is to be noted that if Parsons had accepted the offer in 1785, 
he would have antedated Wilson, Kent, Clay, and all the others, 
except Chancellor Wythe, as an American Law Professor. 

It is a curious commentary upon the state of the law and the 
general conditions of education, that thirty years were to elapse 
after 1785, before Harvard should make the next attempt at legal 
education. It is also a surprising fact that, though Parsons him- 
self was a Fellow of the Corporation, from 1806 until his resig- 
nation in 1812, (3) and, in 1805, extremely active in founding the 
Professorship of Natural History at Harvard, no effort seems to 
have been made by him towards promoting legal education. 

(1) See letter of inquiry from Prof. Parsons to Pres. Walker, March 
2. 1858, Harvard College Papers, 2nd Series, Vol. XXV. 

(2) See Articles in the Boston Independent Chronicle for March-April, 
1786. 

(3) In Parsons' letter of resignation, July 16, 1812 Harvard College 
Papers, Vol. VII, p. 38, he said: 

"I resign a connection with the University which is as dear to my heart 
as it is essential to the best interests of literature, science and religion. 

I am happy in knowing that the patronage of the college is now with 
gentlemen who will endeavor to protect it from the perils to which it is 
exposed, and to advance its reputation and utility." 



ISAAC ROYALL. 285 

Nothing was actually done in this direction until 1815. Pos- 
sibly the long years of financial embarrassment, due to the Em- 
bargo Act, the War of 1812, and the depression in law business 
in Massachusetts, had seemed to the Corporation an unfavorable 
time in which to try experiments of this nature in the struggling 
College. But in the early part of the year 1815, the condition 
of affairs suddenly changed. Edmund Quincy in his Memoirs 
of Josiah Quincy thus describes the great event with which the 
year began the treaty of peace with England : 

On Monday, the I3th of February, 1815, an express arrived 
at the office of the Columbian Centincl in the incredibly short 
space of thirty-two hours from New York bearing a letter tell- 
ing of the arrival of the British sloop-of-war Favourite under a 
flag of truce bearing an English and an American messenger 
charged with the custody of the treaty. The bells were at once 
set a-ringing as the readiest way of spreading the joyful news 
salutes were fired the volunteer companies and their bands filled 
the streets the schoolboys had a holiday, the whole population 
was in the streets . . . The wharves so long deserted were thronged 
and the melancholy ships that rotted along them were once more 
bright with flags. . . . On Washington's birthday a procession under 
military escort of which a main feature was a representation of 
the various trades . . . conducted the authorities of the State and 
town to the Stone Chapel where fitting religious and musical 
services were had. A dinner at the Exchange Coffee House, at 
which Harrison Gray Otis presided, succeeded ; and the night 
was brilliant with fireworks and a general illumination. 

And Jared Sparks wrote March 9, 1815, to a friend(i) : 

I suppose you have been rejoicing with all the rest of the world 
for peace. We were in as much confusion here for a week or 
two after the news as we were last fall when it was expected 
every day the British would make an attempt on Boston. But 
with this pleasing difference ; instead of having our ears stunned 
with the clangor of drums, bugles, and trumpets, we heard noth- 
ing for several days but the ringing of bells and the roar of 
cannon . . . During one week all business seemed suspended, and 
everyone joined in a universal shout of joy. All our colleges 
were splendidly illuminated two nights Boston was illuminated 
in the most superb manner, and almost every gentleman's house 
within ten miles. It is pleasing to see the wonderful change that 
has already taken place in Boston. Streets which for three years 

(i) Jared Sparks to Hurd, in Life of Jared Sparks, by Herbert C. 
Adams. 



286 HARVARD LAW SCHOOL. 

past seem to have been almost entirely deserted are now crowded 
with merchants and carriers. Vessels are seen sailing out and 
coming into the harbor and the most cheering prospect appears 
on every side. 

In order to co-relate further the beginning of legal education 
at Harvard with contemporaneous history, it may be noted that 
this year 1815 was the year of the battle of New Orleans; James 
Madison was President ; Caleb Strong was Governor of Massa- 
chusetts; William Marchant Richardson was Chief Justice of 
New Hampshire ; James Kent was Chancellor and Ambrose Spen- 
cer, Chief Justice of New York; William Tilghman was Chief 
Justice in Pennsylvania. Henry W. DeSaussure was Chancellor 
in South Carolina ; Lord Ellenborough was Chief Justice of 
King's Bench and Lord Eldon, Lord Chancellor, in England. 

It was the year in which Pinkney and Emmet argued the 
case of The Nereide, in the Supreme Court in Washington; 
it was four years after Judge Story took his seat on the bench, 
and the year before Daniel Webster settled in Boston to prac- 
tice law. 

It was the year in which the North American Review was 
founded, and Scott published Guy Mannering, and two years 
before Bryant wrote Thanatopsis. 

It was the year in which Theophilus Parsons Jr. and Jared 
Sparks graduated from Harvard, and in which Ralph Waldo 
Emerson was a Freshman. 

It was seven years before Boston became a city, two years 
before the beginning of the Erie Canal, eight years after the 
voyage of Fulton's Clermont up the Hudson. 

It was the year of the Battle of Waterloo, and of the birth of 
Bismarck. 

In Harvard College, in 1815, the lawyers comprised the major- 
ity of the Corporation, which then consisted of John Lowell, John 
Phillips (the first Mayor of Boston in 1822), Christopher Gore 
(Governor of the Commonwealth in 1809, and United States 
Senator in 1814), Rev. William Ellery Channing, Rev. John 
Lathrop, President Kirkland, and the Treasurer, Judge John 
Davis, (i) 



(i) In 1806, when Theophilus Parsons was elected a member of the 
Corporation, that body, for the first time, became composed exclusively of 
Fellows, all residing out of Cambridge and unconnected with the teaching 
force of the College. 



ISAAC ROYALL. 287 

Of the Board of Overseers, in 1815, a large proportion were 
lawyers, the fifteen laymen elected under the Statute of 1810, 
(which first added such laymen to the Board) being Christopher 
Gore (who resigned that year), Isaac Rand (who resigned that 
year and was succeeded by Dudley Atkyns Tyng, Reporter of 
the Supreme Court), William Phillips, Benjamin Pickman, 
Thomas Dawes, William Spooner, Samuel Dexter (who died 
the next year and was succeeded by John Brooks, ex-Governor), 
John Welles, Harrison Gray Otis, William Prescott, Artemas 
Ward, Isaac Parker, John Phillips, Nathaniel Bowditch and 
Josiah Quincy. 

Such being the conditions in the governing Boards of the Col- 
lege, the lawyers on the Boards and the prominent lawyers in 
the State, particularly William Prescott, Charles Jackson and 
John Lowell had discussed, for over a year, the advisability 
of establishing a Law Professorship at Harvard. 

The man to whose active work and enthusiasm the College 
owed the actual foundation was a lawyer, whom Josiah Quincy 
later described as "yielding to none in zeal and affection for the 
university a man who . . . felt the power and possessed the spirit 
to attempt to lift the College upwards and to bestow upon it 
more of the character, as it already had the name, of a Univers- 
ity." This was John Lowell, a fellow of the Corporation the 
son of Judge John Lowell. (i) He was born in 1769, at New- 
buryport, graduated at Harvard in 1786, studied in his father's 
office and at once sprang into active practise ; being associated 
in many cases with the older leaders of the Bar, like Dexter, H. 
G. Otis, and Prescott. In 1803, owing to ill health, he had re- 
tired from active practise (2). He took an active part in politics, 
being one of the most Federal of the Federalists; and Edward 
Everett wrote that "after the death of Fisher Ames, Mr. Lowell 
possessed a greater ascendency than any other person in New 
England over the minds of those who were opposed to the Na- 



(1) Born in 1743, Harvard 1760, studied with Oxenbridge Thacher, 
leader of the Bar for several years after the Revolution, Judge of U. S. 
District Court 1789, Fellow of the Harvard Corporation 1784. 

(2) It is a curious fact that, in 1817, after having been fourteen years 
out of practise of the law, Lowell was persuaded by his old friend and 
client, Ward Nicholas Boylston, to make a journey to England and try 
to forward Mr. Boylston's cause in a chancery suit which had been 
dragging its slow length before Lord Eldon for years. To the surprise 
of those who were acquainted with the difficulty of the undertaking, 
Lowell was fully successful. 



288 HARVARD LAW SCHOOL. 

tional administration." He was a voluminous pamphleteer on 
political subjects, writing under the pseudonymns of "The Rox- 
bury Farmer" the "Boston Rebel" and othersj 

In 1814, he was one of the most radical believers in the move- 
ment which resulted in the calling of the Hartford Convention; 
and he lamented the extremely conservative action of that body. 
He also engaged vigorously in the Unitarian controversy, which 
was raging fiercely in 1815. But though very severe in tone, 
his writings were always free from private malice or personal 
innuendo. 

His interests were varied, and of high character. He was one 
of the founders of the Provident Institution for Savings in Bos- 
ton, the Massachusetts General Hospital, the Boston Athenaeum, 
the Botanical Garden at Harvard, and was President of the Mass- 
achusetts Agricultural Society. And Edward Everett wrote in 
1839 on Lowell's death : 

It would not be easy to name an individual in the last generation 
who either in public or in private life has made himself as exten- 
sively felt in the community as Mr. Lowell, and this by the un- 
aided force of personal influence. 

He was animated by the loftiest sense of personal honor ; his 
heart was the home of the kindest feelings; and without a shade 
of selfishness he considered wealth to be no otherwise valuable 
but as a powerful instrument of doing good. His liberality went 
to the extent of his means ; and when they stopped, he exercised 
an almost unlimited control over the means of others. It was 
difficult to resist the contagion of his enthusiasm, for it was the 
enthusiasm of a strong, cultivated and practical man. He pos- 
sessed colloquial powers of the highest order and a flow of un- 
studied eloquence never surpassed, and rarely, as with him, united 
with command of an accurate, elegant and logical pen. 

So too, Rev. F. W. P. Greenwood said in his eulogy (i) : 

From 1810 to 1822 he was a member of the corporation of 
Harvard University ; and I know not that there is any exaggera- 



(i) For further details as to Lowell see Sermon on death of John 
Lowell L. L. D. March 22, 1840, by Rev. F. W. P. Greenwood. 

Memoir of John A. Lowell, in Mass. Hist. Soc. Proc. 2nd Series, Vol. 
XII (1898). 

Memoir of John Lowell in Mass. Hist. Soc. Proc. ist Series, Vol. IX 
(1840). 

Memoir of Mr. John Lowell Junior, delivered on the lectures on his 
Foundation, in the Odeon, Dec. 31, 1839, u'ith a note on the death of John 
Lowell L. L. D., by Edward Everett. 



ISAAC ROYALL. 289 

tion in saying that during the period of his service he was the 
soul of that corporation. His time, his acquirements, his exer- 
tions and his means were at the call of the best interests of the 
University; where money was required, he subscribed liberally 
himself. 

Frank and fearless, generous and prompt, and at times even 
impetuous. This heartiness of disposition was inseparably con- 
nected with a keen susceptibility of nature, which was the occa- 
sion of a too great quickness and vehemence of language or ac- 
tion, which was the only failing that a friend could ever discover 
in him or an opponent charge to him. 

Reference to Lowell's efforts to persuade the Corporation to 
constitute a Law Professorship is first found in a letter written 
by Judge Story from Washington, June 30, 1815, to his friend 
Charles P. Sumner, who had urged the judge to deliver a course 
of law lectures in Boston(i) : 

I have it very much at heart that you should deliver a course 
of lectures on our Constitution ; our Statute Laws ; our common 
law, such as it is modified by our statutes ; and the civil law or 
such portions thereof as are most worthy the attention of a 
lawyer in the United States. 

You once told me you wanted only the assurance that your 
expenses should be reimbursed and you would be happy to under- 
take it. I have revolved the subject in my mind and I think you 
may at any and all times have as many as twenty auditors who 
would cheerfully pay 15 to 20 dollars for the course. This would 
yield 300 or 400 dollars ; this would indeed be far short of 
what it would be worth, but if you should conclude at any time 
to undertake it, I hope you would consider that you would be 
thereby rendering a very great and needed service to your coun- 
try. Law lectures and law treatises are plenty enough for an 
English student but such as would be entirely useful to an Ameri- 
can student are a very great desideratum. Great as may have 
been our lawyers, they seem to me hitherto to have bent the 
force of their minds chiefly to benefit themselves ; and very few 
of them seem like you to have considered that there was a great 
debt due from them to their profession. 

Story replied as follows: 

Your late letter was very welcome to me. The more so, be- 
cause it came from a friend whom I had long known, and there- 

(i) This letter from Sumner was not published in Life and Letters "/ 
Joseph Story by W. W. Story; but has recently appeared in Mass. Hist. 
Society Proc., 2nd Series, Vol. XVI (1901-02). 
19 



290 HARVARD LAW SCHOOL. 

fore could more fully appreciate the value and kindness of his 
remarks. I will not profess to be insensible to your flattering 
commendations. They very far exceed my deserts, and I can only 
regret that I am not worthy of them. 

I should have no objection to delivering a course of law lec- 
tures in the manner which you suggest. In truth, since our con- 
versation, I had turned the subject several times in my mind ; 
and it was the more agreeable to me, as it would just about fill 
up the leisure time which I now allot to general reading of the 
law. 

Judge Davis, however, on my last visit at Boston, expressed 
an opinion, that public law lectures would be delivered at Cam- 
bridge, in the course of a year; and that the government had 
it now in contemplation. Under these circumstances, I should 
feel it somewhat awkward to announce a determination to pursue 
a like course; and perhaps it will be best to await the decision 
of the college. 

The College "made its decision," at a meeting of the Corpor- 
ation on August 18, 1815, at which were present Judge Phillips, 
Dr. Lathrop, President Kirkland, and the Treasurer, Judge John 
Davis, and at which the following vote was passed : 

Voted: That the corporation are desirous of taking measures 
to have delivered annually at the University for the benefit of 
the more advanced students a competent number of lectures on 
jurisprudence and that $400 of the income of the legacy of the 
late Isaac Royall Esq., be appropriated each year towards a 
compensation for such lectures. 

Voted: To choose a gentleman to perform this service under 
such title and regulation as may hereafter be determined. 

John Lowell, Esq., was chosen. 

President Kirkland thereupon wrote to Lowell, that it was 
"thought necessary to have in view a proper lecturer before tak- 
ing steps to complete the institution," and that the Corporation 
considered him "eminently fitted."(i) 



(i) Two drafts of President Kirkland's letter, dated August 19 and 
August 21, 1815, may be found in Harv. College Papers, Vol. VII ; and 
Harv. Coll. Papers, Vol. VIII. The drafts contain a copy of the votes of 
the Corporation of August 18. 1815, certified to by President Kirkland and 
worded as given above in the text. As a matter of fact, however, the 
wording of the votes as they now appear on the records of the Corporation 
is slightly different, as follows : 

"Voted and chose John Lowell Esq. to be Professor of Law under such 
title and regulations as may hereafter be determined. 

Voted that the compensation of the Professor of Law shall be four 
hundred dollars per year." 



ISAAC PARKER. 291 

Lowell, however, declined to take the position ; but, he earn- 
estly urged the appointment of his classmate at Harvard, Isaac 
Parker, then Chief Justice of Massachusetts, whom the College 
had recently honored, in 1814, with the degree of LL. D. 

Accordingly, in the words of the official record : 

At a meeting of the President & Fellows of Harvard College 
September 4, 

Present 

The President Dr. Lathrop 

Judge Davis Treas. Mr. Lowel 

Judge Phillips Mr. Channing 

The President prayed. 
Mr. Gore came in before the passing of any votes. 

(1) Voted: That there be established in the University a 
Professorship of Law agreeably to a provision in the will of the 
late Hon. Isaac Royall ; that four hundred dollars of the income 
of the legacy of that Benefactor be annually appropriated towards 
a compensation for the Professor's services. 

(2) Voted: To proceed to the choice of a gentleman to be 
Professor of Law to give lectures on jurisprudence at the Uni- 
versity to the members of the Senior Class, to the resident grad- 
uates and to others who may be permitted to attend according 
to such statutes and regulations as may be adopted. 

(3) Votes being brought in the Hon. Isaac Parker was 
chosen. 

(4) Voted: That Mr. Gore and Mr. Lowell be a committee 
to devise the rules and statutes for the professorship above named, 
and report. 

< 

At a later meeting of the Corporation on September 14, 1815, 
it was voted, "that the Professor of Law be called the Royall 
Professor and that his salary be paid from the fund established 
by the late Hon. Isaac Royall." 

These votes were brought before the Board of Overseers, on 
Oct. 12, 1815, at a meeting held in the Council Chamber of the 
State House at Boston, the following gentlemen being present, 

"Hon. Gen. Cobb, Mr. Tyng, Mr. Quincy, Judge Dawes, Rev. 
Prest . Kirkland, Rev. Dr. Lathrop, Rev. Dr. Porter, Rev. Dr. 
Foster, Rev. Mr. Lowell, Rev. Mr. Holley, Rev. Mr. Codman, 
Rev. Mr. Gray, Rev. Mr. Eliot," (three lawyers, and nine clergy- 
men, it may be noted) ; and the votes of the Corporation were 
concurred in, and the statutes of the Professorship adopted by 
the Corporation on October n were referred to a committee con- 
sisting of Hon. Judge Dawes, D. A. Tyng and Mr. Quincy. 



292 HARVARD LAW SCHOOL. 

The statutes having been endorsed by the Committee as, "highly 
honourable as well as useful to the College," were adopted ; and 
thus Isaac Parker, Chief Justice of Massachusetts, became Har- 
vard's first Law Professor. 

ISAAC PARKER. 

Of Parker's life only scanty personal records remain, 
outside of his judicial decisions. He was born in Boston, June 
17, 1768 being thus eighteen years younger than Theophilus 
Parsons, and seven years younger than Samuel Dexter. Grad- 
uating from Harvard in 1786, a classmate of John Lowell Jr., 
he studied law under William Tudor, and was admitted to prac- 
tice at the Boston Bar in 1789. He soon removed to Castine in 
the District of Maine, where he acquired a high rank in the pro- 
fession and a large amount of practice, notwithstanding the great 
depression in all branches of business and the deep seated pre- 
judice against lawyers. His distinction was undoubtedly partly 
due to the scarcity of lawyers; for at the end of the i8th Cen- 
tury there had been only 53 lawyers, admitted to practice in 
Maine, only eight of whom were barristers, John Gardiner, Wil- 
liam Cushing, David Sewall, Theophilus Bradbury, David Wyer, 
William Wetmore. (i) 

Parker served in the Legislature in both branches, and was 
a Member of Congress in 1796. In 1798, he was appointed United 
States Marshal by President Adams, and removed to Portland 
a city which was then the seat of an extensive foreign and 
domestic commerce, and as Chief Justice Shaw said, "afforded 
the largest scope in that great section of the Commonwealth for 
the exercise of forensic talents. From that time, Parker is under- 
stood to have taken a high rank and to have been constantly en- 
gaged in the active and laborious duty of a counsellor and advo- 
cate, and to have enjoyed an extensive and lucrative practice. "(2) 

On the death of Simeon Strong, Justice of the Supreme Court 
of Massachusetts, Parker was offered the place but declined be- 

(1) Prominent at the Bar in Parker's time, in Maine, were Timothy 
Langdon (Harvard 1768), Roland Cushing (Harvard 1768), John Froth - 
ingham (Harvard 1771), Royall Tyler (Harvard 1776) later Chief Justice 
of Vermont, William Lithgow, George Thacher (Harvard 1776), Daniel 
Davis (later Solicitor General in Massachusetts), Salmon Chase, William 
Symmes, Silas Lee (Harvard 1784), Prentiss Mellen (Harvard 1784). 

(2) See Sketch of Life and Character of Hon. Isaac Parker, by Lemuel 
Shaw C. J., before the Berkshire Bar, (Sept. 1830), in 9 Pickering 566. 



ISAAC PARKER. 293 

cause the salary ($1,200) was far less than his income at the 
Bar; but in 1806 he was finally induced to accept. Other rea- 
sons, than his conspicuous legal ability undoubtedly led to his 
appointment the fact that he was a strong Federalist and the 
further fact that no other member of that court came from the 
Maine district of the State. His contemporary William Sullivan 
says, ''he was not supposed to be a learned lawyer when he first 
took his seat upon the bench . . . but he proved to be one of the 
ablest judges that ever sat in this court. Probably however he 
could not number as many hours of study in his whole life, as 
Parsons could number days."(i) 

Almost as soon as he took his seat, in 1806, Parker was called 
upon to preside over the trial of Thomas O. Self ridge, a well 
known Federalist lawyer, indicted for shooting the son of Ben- 
jamin Austin, the still better known Republican pamphleteer. 
This case aroused intense political feeling in the community. 
The press teemed with articles, favorable and otherwise to the 
defendant. The arguments of counsel at the trial Attorney 
General James Sullivan and Solicitor General Daniel Davis for 
the State, and Samuel Dexter and Christopher Gore for the 
defendant contained many allusions to the political significance 
of the case. (2) 



(1) Familiar Letters on Public Characters of the Day, by William 
Sullivan. 

(2) The facts of the case were as follows: Selfridge, being informed 
that Benjamin Austin had spoken of ''the interference of a damned Federal 
lawyer," referring to him, had published in the Boston Gazette of Aug. 
4, 1806, this remarkable advertisement, peculiarly illustrative of the extreme 
rancor of the times. 

"Benjamin Austin, loan officer, having acknowledged that he has cir- 
culated an infamous falsehood concerning my professional conduct in a 
certain cause, and having refused to give the satisfaction due to a gentle- 
man in similar cases I hereby publish said Austin as a coward, liar and 
scoundrel ; and if said Austin has the effrontery to deny any part of the 
charge, he shall be silenced by the most irrefragable proof. 

Thomas O. Selfridge. 

P. S. The various editors in the United States are requested to insert 
the above notice in their journals, and their bills shall be paid to their 
respective agents in this town." 

Mr. Austin, having obtained knowledge that this outrageous libel was 
to be published, had inserted in the Independent Chronicle of the same 
morning, the following: 

"Considering it derogatory to enter into a newspaper controversy with 
one T. O. Selfridge, in reply to his insolent and false publication in the 
Gazette of this day ; if any gentleman is desirous to know the facts, on 
which his impertinence is founded, any information will be given by me 
on the subject. 

Benjamin Austin. 



294 HARVARD LAW SCHOOL. 

The difficulties of Parker's position as judge at this trial were 
well described by Chief Justice Shaw in his address, at the time 
of Parker's death, and Shaw' remarks are the more interesting, 
by reason of the fact that he himself was a witness for the de- 
fendant at this trial(i): 

The parties held high positions in society and a prominent 
rank in the opposite political parties, and the prejudices and pas- 
sions connected with the prosecution were not a little inflamed 
by the excited party politics of the day. Yet such was the dignity, 
the impartiality, the skill and ability with which the newly ap- 
pointed judge, then comparatively a stranger, conducted this trial 
that it is believed he gave universal satisfaction and made him- 
self most favorably known as a jurist of great promise. 

In 1814, when the office of Chief Justice became vacant "all 
eyes", said Story, "were turned towards him as successor;" and 



Those who publish Selfridge's statement, are requested to insert the 
above, and they shall be paid on presenting their bills." 

Austin, further, on the same day, on meeting a friend of Selfridge said 
"if Mr. Selfridge attacks me, I hope to have such support from friends at 
hand as I shall be able to avoid any injury." This remark, being reported 
to Selfridge, was regarded by him as a threat that Austin proposed to 
assault him. The fact seems to have been quite the opposite ; as Austin 
only intended to guard himself from any assault by Selfridge. 

Unknown, however, to Austin, his son Charles Austin took upon himself 
the defence of his father's honor. This young man was then a student in 
Harvard College, of remarkable promise, and a universal favorite, and 
only eighteen years of age. Chancing to be in Boston that morning, he 
read the Gazette and immediately purchased a long cane. About one 
o'clock in the afternoon, he was talking with a friend on the sidewalk 
in front of what is now the Worthington Building on the corner of State 
and Congress streets. While there, he saw Selfridge coming round the 
corner of the old State House, Selfridge's law office being in that building. 
As Selfridge reached a point in State street just opposite what is now the 
Merchants' Bank Building, Austin stepped out towards him, and raising 
his cane, dealt him a heavy blow on the head, which cut through his hat 
and through his scalp. Upon this Selfridge drew a pistol, and shot 
his assailant through the breast. Austin after dealing him several 
weaker blows, finally sank on the pavement, and was carried into a shop 
where he soon died. 

(i) Address before the Berkshire Bar, Sept., 1830. 

John Gorham Palfrey in his Sermon on the Death of Isaac Parker 
(1830) spoke of the Selfridge case as "a trial involving questions of the 
most abstruse, delicate and painful nature, as fresh now in the memory 
of many of us, as events of yesterday." 

Joseph Story, who was of opposite political belief, paid his tribute to 
Parker's fairness, describing the political condition in which the new 
judge found himself: 

"He lived through times of peculiar delicacy and difficulty, in the midst 
of great political changes and excitements, when the tribunals of justice 
were scarcely free from the approaches of the spirit of discord and the 
appeals of party were almost ready to silence the precept of the law." 



ISAAC PARKER. 295 

he was appointed, said Shaw, "to the universal satisfaction of 

the community." 

It was just one year later that he received the offer of the 
Professorship of Law. 

Parker's personal characteristics were of the pleasantest nature. 
Story, who knew him well wrote that : "His manners were frank, 
modest, and winning, without ostentation, and without affecta- 
tion a mild temperament, a quiet and moderate cheerfulness, an 
ingenuous countenance, and social kindness which pleased with- 
out effort and was itself easily pleased. His most striking char- 
acteristic was sound sense, discretion, patience, judgment." 

Palfrey described "his frankness and expression of confidence 
in his deportment, putting all who approached him at their ease ; 
his habitual gayety of spirit, and power of ready adaptation of 
others' feelings which only an exhaustless fund of kind and cordial 
feeling could supply ; the honest, equal, friendly, personal regard 
which he inspired, rarely excited by the most respected and valued 
publick men." 

Sullivan gives an amusing anecdote of his kindly humor, in 
describing his simple habits of life: 

Once a new servant who had left a family where it was the 
usage to announce visitors, asked two lawyers who came to 
call for their names. They being amused at the Judge's new 
style said "John Doe and Richard Roe." The servant threw open 
the door and announced "Mr. John Doe and Mr. Richard Roe.'' 
The Chief Justice came forward with his usual good nature and 
extending his hand said, "Gentlemen, I have read of you and 
heard of you all my life, but I have despaired of making a per- 
sonal acquaintance." The servant however was ordered to forego 
this gentility in future. 

Of his personal appearance, Sullivan writes: "He was a man 
of middle stature, of full person and face, light or red complex- 
ion, blue eyes, and very high forehead, and remarkably bald. His 
manners were simple and without pretension to polish. He was 
very affable, amiable, and unpretending, and a most companion- 
able and agreeable associate in private life. Perhaps no man 
excelled him in kind and friendly feelings. He used snuff im- 
moderately ; it affected his voice in his latter years." 

Of the legal side of his nature, the most predominant feature 
was his high quality of common sense. He labored always 
not to lose sight of the real justice and merits of the case. To 



296 HARVARD LAW SCHOOL. 

the application of legal acuteness and skill leading towards find- 
ing defects in legal process, he had an utter aversion. If he had 
a fault it was this very "too ardent desire to reach the equity 
of the particular case," said Shaw, and hence he was sometimes 
called "The Chancellor of Massachusetts law." His clearness, 
his rapidity and readiness in grasping a point, the simplicity and 
ease of his opinions, and his patience in listening to explanations 
amply made up however for his lack of great learning. "With 
all its vivacity I have never known the mind so patient of severe 
labor nor the mind which during the period of any observation 
has been so heavily tasked. This was no hardship to him. It 
never broke his spirit. It never quelled his gayety," said Palfrey. 

He was thoroughly interested and conversant with all the varied 
interests and passing events of the day. "The interests of our 
infant literature were always very near his heart." He was a 
vigilant and active Trustee of Bowdoin College, the President for 
two years of the Phi Beta Kappa, a Fellow of the American 
Academy and later an Overseer of Harvard College. 

The law needed at this time a man of just these broad com- 
mon sense tendencies ; and it found him in Isaac Parker. As 
Story said : 

It was a critical moment in the progress of our jurisprudence. 
We wanted a cautious but liberal mind to aid the new growth 
of principles to enlarge the old rules, to infuse a vital equity 
we wanted a mind which with sufficient knowledge of the old 
law was yet not a slave to its forms, which was bold enough to 
invigorate it with new principles not from the desire of inno- 
vation but the love of improvement. We wanted a sobriety of 
judgment but at the same time a free spirit. . . . Such a 
man was Parker. 

This was the man whom Harvard called to be its first Law 
Professor. 

The principal provisions of the statutes of the new Royall 
Professorship were as follows :(i) 



(i) The other statutes not quoted in full above were: 
"Statute 2nd. 

The said Professor of Law shall be elected in the same manner 
in which other officers of the College are chosen, and shall hold the 
office during good behavior, but the Corporation, with the assent of the 
Overseers, may at any time remove him for any cause, which they may 
deem just and sufficient. 
Statute 4th. 

The said Professor shall enjoy all the authority while delivering 



ISAAC PARKER. 297 

Statute ist. For the present, and so long as the principal sup- 
port of the Professor shall be derived from the fund bequeathed 
by the late Hon. Isaac Royall, Esquire, the Professor shall be 
entitled "Royall Professor of Law ;" but the Corporation reserve 
to themselves the right, with the assent of the Overseers, to 
change the title of said Professor, whenever and as soon as any 
such additions shall be made to the aforesaid fund as to render 
the sum bequeathed by the aforesaid Royall the smaller part of 
the whole foundation, or for any other good and sufficient rea- 
son, not repugnant to the will of the said Royall. 

Statute yd. The said professor shall enjoy the privileges and 
rank which appertains of right to the other Professors in the 
College ; but he shall not be obliged to reside in the town of Cam- 
bridge, nor shall he be called upon to take any part in the im- 
mediate government of the College, unless required so to do by 
the Corporation and Overseers ; he shall, however, when re- 
quested by the Corporation, give his opinion on any questions 
of law immediately affecting the College, provided the delivery 
of such opinion shall not interfere with the said Professor's other 
duties. 

The Professor was only to be called upon to deliver 15 lec- 
tures, which were to be attended by Seniors in the College; 
though the officers and resident graduates of the College were 
to be entitled to attend gratis ; and the Professor was to be 
allowed to admit other persons, not resident of the College, on 
such terms as he should fix. 

The scope of the lectures required was most extensive in 
fact far greater than any man could give in so short a course. 

his lectures to the students, as to the preservation of order and decorum 
and the regulation of the deportment of the students which other 
professors are entitled to exercise ; and for any indecorum during his 
exercises or insult offered to him, the students shall be subject to such 
penalties as are provided in like case as to the other officers of the 
College ; which penalties it shall be the duty of the immediate government, 
after examination, to apply. 
Statute Sth. 

The said Professor shall before he enters on the duties of his office, sub- 
scribe these statutes, as well as the usual declaration prescribed in such 
cases to the other Professors. 
Statute 6th. 

The course of lectures shall be delivered in some of the College 
Publick Rooms and shall consist of not less than fifteen; and until 
further order, the same shall be attended only by the Senior class 
among the Undergraduates; but the officers of the College including 
the Overseers and Corporation together with all the Resident Graduates 
shall have a right to attend the said Lectures gratis. 

It shall be lawful for the said Professor to admit any other persons, 
not resident at the College, on such terms and conditions as shall to the 
said Professor seem proper ; provided that such arrangements be made 
as to numbers and seats at the lectures, as may con>:>t with the suitable 
accommodation of the members of the College who attend." 



298 HARVARD LAW SCHOOL. 

Statute yth. It shall be the duty of the said Professor to 
exhibit in a course of lectures, the theory of law in its most 
comprehensive sense ; the principles and practical operation of 
the Constitution and Government of the United States and this 
Commonwealth ; a history of the jurisprudence of this State 
under the Colonial and Provincial as well as under the present 
government ; an explanation of the principles of the Common 
Law of England, the mode of its introduction into this country, 
and the sources and reasons of its obligation therein ; also the 
various modifications by usage, judicial decision, and Statute; 
and, generally those topics connected with law as a science which 
will best lead the minds of students to such inquiries and re- 
searches as will qualify them to become useful and distinguished 
supporters of our free system of government, as well as able 
and honorable advocates on the rights of the citizen. 

The appointment of Judge Parker was well received by the 
general public ; and the North American Review said, in No- 
vember, 1815 [Vol. II] : 

i 

The [Royall] income, although not sufficient for the main- 
tenance of a resident professor, affording a compensation for a 
competent number of lectures in jurisprudence, considered as a 
part of general education, the Corporation with the consent of 
the Overseers have added to the Institution a Professor of Law. 
The Hon. Isaac Parker is appointed to this office which he has 
accepted with the view of commencing the lectures next season, 
it being a part of the year when the official duties of the Chief 
Justice will not interfere with those of the Professor. We are 
happy that our educated young men are to be guided to a know- 
ledge of the general principles of law and their application to 
our forms of civil and ecclesiastical policy under the auspices 
of a civilian so entirely the object of publick confidence. 

Judge Parker was not prepared to enter on his duties at once, 
and his inauguration did not occur until April 17, 1816. An 
inauguration of a professor was in those days a solemn and 
formal affair. 

The Overseers met on the day in the Philosophy Chamber in 
Harvard Hall, the Governor, the Lieutenant Governor, and most 
of the Board being present. A procession of the officers, Over- 
seers, visitors, trustees, noted guests, the whole preceded by 
the entire body of resident graduates and undergraduates, then 
went out of the yard from Harvard Hall "through the north 
gate and re-entered by the gate fronting University Hall. When 
the procession arrived at the south steps, it opened to the right 



ISAAC PARKER. 299 

and left, the procession passing between the two lines into the 
chapel in University Hall, where the ceremonies took place as 
follows. President Kirkland offered a prayer. He then made 
an address on the importance of the profession of law, and 
reciting the acts of the Boards in establishing the new office. 
The Statutes of the Professorship were then read in full. Presi- 
dent Kirkland then called on the new Professor to subscribe and 
deliver to the Governor his declaration. This being done, the 
President asked the leave of the Governor to declare the Pro- 
fessor; and this being obtained, he announced him Royall Pro- 
fessor of Law. He then bade him welcome to his place in the 
University and the Professor replied. Thereupon the Presi- 
dent invited him into the desk to deliver his inaugural address. 
The Professor accordingly pronounced a discourse in English, 
the Latin language having been used in all the preceding exer- 
cises except the prayer. A psalm and anthem were sung by the 
singing society of the University. The publick exercises and 
ceremonies being finished, the company dined together in the 
dining hall No. Ill, except that the officers and graduates living 
in commons dined at their respective tables."(i) 

Such was the elaborate and classical manner in which a man 
became Professor of Harvard ninety years ago. 

The inaugural address delivered by Parker is of extraordinary 
interest at the present day, so modern is it in its attitude towards 
law as a science and parts of it might indeed be thought to 
be the words of Langdell himself. (2) 

At the outset he explained the reasons for the "publick neglect 
of so important a branch of education," as follows : 

Like all incipient institutions, this must be imperfect in the 
outset; like them it may, however, be improved in its progress, 
and at least in future time, and in other hands, may grow into 
a system, honorable to the University and highly useful to the 
publick. 

In the rapid growth of this revered seminary from a school 
to a college, and from that to an University, keeping pace with 
the advancement of the Commonwealth, of which it has ever 
been the favorite child, as well as the faithful nurse, it has been 
thought difficult to account for so late an introduction of jur- 

(1) See Records of the Corporation and of the Overseers Harvard 
College Archives. 

(2) ,See address as published in full in North American Reviciv, Vol. 
Ill (May 1816). 



300 HARVARD LAW SCHOOL. 

isprudence among the sister sciences which have long flourished 
here, under the patronage of the publick. The publick neglect 
of so important a branch of education may be traced to causes 
in no way disreputable to the science of jurisprudence in its 
present improved condition, or to the wisdom and discernment 
of those who have governed the affairs of the University. The 
course of education in this country has been wisely adapted to 
the actual state of things, and until recently has been calculated 
to give a competent portion of general knowledge, rather than 
to produce extraordinary instances of wonderful attainment. 

Professorships of particular branches of science have there- 
fore been but lately introduced, except in Theology, which in 
our enlightened Christian country is deservedly the first object 
of public patronage, and in the demonstrative sciences which 
are at all times necessary. Our students have been educated for 
business, not for contemplation, and the rare opportunities which 
have yet occurred of devoting a life to literary or scientific pur- 
suits, have justified the slow advancement of the university to 
that degree of eminence which the establishments of older coun- 
tries have so long enjoyed. 

But the means of education are multiplying and developing in 
proportion to the increasing demands of our rapidly improving 
society. 

After showing how early education was concerned with the- 
ology, and with matters fitting men for business, he explained 
how it happened that the teaching of medicine was taken up before 
that of law: 

Next to the care of the soul has been justly estimated the 
preservation of life and health; professorships for instruction 
in the various branches of the healing art have therefore suc- 
ceeded those of Theology, and it ought not to be considered as 
out of the natural course that thirty years should have intervened 
between the admission of those necessary sciences into the Uni- 
versity and the establishment of jurisprudence as a branch of 
academick education. Our Commonwealth has now got beyond 
its infancy, and its institutions are fast advancing to the per- 
fection which accompanies maturity. 

He then discussed the low state of the practice of the law and 
of the legal profession in the early years of the country : 

For the first century of our history, we learn little of law and 
lawyers, but the simplicity of one and the insignificance of the 
other. 

The profession was probably followed by men of low minds 
and lower reputation, whose efforts were limited to the median- 



ISAAC PARKER. 301 

ical drudgery of the craft. . . . The profession of the law was un- 
doubtedly then considered odious, and jurisprudence was prob- 
ably unknown as a science. ... In such a state of things, law 
could not be deemed a science; and a proposition to teach it in 
a college would probably have been received with as much hor- 
ror as a scheme to instruct in magick or the black art. Law 
was a trade rather than a science ; and its professors viewed as 
cunning artificers, rather than as profound jurists. 

He then compared the recent generation of lawyers with the 
older, stating that Gushing, Dana, Lowell, Strong, Sedgwick, 
Parsons and Sewall "would have been honored in any country 
and in any times:" 

To a familiar knowledge of our municipal regulations, most 
of them added an extensive acquaintance with other sciences ; 
and the law as understood and administered by them was a 
comprehensive system of human wisdom, derived from the na- 
ture of man in his social and civil state, and founded on the 
everlasting basis of natural justice and moral philosophy. 

With the development of a Bar consisting of men of such 
ample learning and character, "Well may the law now be de- 
nominated a science and deemed worthy of a place in the Uni- 
versity" he said: 

A science like this is worthy to be taught, for it cannot be 
understood without instruction ; it should be admitted into fel- 
lowship with its fellow sciences, for like them, its ends are 
noble. Its fundamental and general principles should be a branch 
of liberal education in every country, but especially in those 
where freedom prevails and where every citizen has an equal 
interest in its preservation and improvement. Justice ought 
therefore to be done to the memory of Royall, whose prospective 
wisdom and judicious liberality provided the means of introduc- 
ing into the university the study of the law. Let us hope that 
the practical advantages which he proposed may result from 
the attempt by this professorship and develop them ; so that 
future benefactors may perceive that an extension of the system, 
which he could only initiate, is one of the best means of serving 
their country. 

He then pointed out that the course of lectures which he was 
to give was not, in any sense, a complete legal education : 

It is obvious that in the short course of lectures of which 
the present state of the institution will admit, nothing like a law 



302 HARVARD LAW SCHOOL. 

education can be attempted; and, indeed, I am satisfied, after 
reflection upon the subject, that such an attempt, if practicable, 
would not be useful for undergraduates, who cannot devote the 
time necessary for any tolerable proficiency, without too great 
an abstraction from other studies, most of which are essential 
prerequisites to the study of the law. 

Exceeding all the rest of his address in importance were his 
closing sentences. For in these last pregnant words, Parker 
made the first suggestion ever officially made at Harvard for the 
founding of a separate school of law: 

At some future time, perhaps, a school for the instruction of 
resident graduates in jurisprudence may be usefully ingrafted 
on this professorship; and there is no doubt that when that 
shall happen, one or two years devoted to study only under 
a capable instructor before they shall enter into the office of a 
counsellor to obtain a knowledge of practice will tend greatly 
to improve the character of the Bar of our State. A respect- 
able institution of this sort in a neighboring State, unconnected 
with any publick seminary has been found highly advantageous 
in the education of young gentlemen to the law. 

The constant engagement of the most eminent counsellors in 
indispensable business renders difficult for them to devote that 
portion of their time to instruction which would seem to be 
necessary for a science which is intricate and abstruse to inex- 
perienced minds. Some improvement, therefore, in professional 
education, seems to be wanting ; and perhaps it can in no better 
way be obtained, than by establishing a school here under the 
protection of the University, as preparatory to that acquisition 
of practical knowledge of business which may always be better 
learnt in the office of a distinguished counsellor. 

Judge Parker's lectures were begun on June 5th, 1816, and 
were delivered through June and July of that year. (i) 

His own report in 1816 gives the best description of them. 

The subscribed, Royall Professor of Law at the University 
of Cambridge, reports that he delivered a course of lectures to 

(i) See letter from Parker to Kirkland, University Archives, Loose 
Letters, Vol. III. 

"I was in hopes to have seen you today and then to have made arrange- 
ments about my lectures which I suppose ought to begin tomorrow. I 
don't know that I can do anything better than to be there ready, in case 
notice has been given. 

Your friend, etc., 

Isaac Parker. 
Monday, June 4." 



ISAAC PARKER. 303 

the Senior Class in June and July last, consisting of an intro- 
ductory lecture recommending the subjects of his course to their 
attention, four lectures comprising the Juridical History of the 
Colony, Province and Commonwealth with its various changes 
one lecture on the organization of the judicial power of the 
State, one on the organization and powers of the courts of the 
United States one on the Constitution of the Commonwealth 
and the various historical events which led to its adoption 
one on the Constitution of the United States and the several 
antecedent confederacies a lecture on Natural Law, one on the 
history of the common law, one on the civil law, one 
on ecclesiastical law a history of the titles to real estate in 
this Commonwealth on personal contracts and property on the 
domestic relations with two or three lectures on some of the 
subjects intended as explanations and illustrations, and a conclud- 
ing lecture of a monitory nature in relation to the studies, de- 
portment and general principles by which their success in life 
and usefulness to the public would be covered On the whole, 
17 or 18 lectures. 

The young gentlemen were, as far as I could discern, atten- 
tive, and their behavior unexceptionable ; some of them took 
minutes and in conversation with them I was satisfied they had 
comprehended the subjects. 

I do not know the number that attended but think from the 
appearance there were not less than three fourths of the class 
present at every lecture. 

"He brought out in a general way such facts and features 
of the common and statute law", says Rev. Dr. A. P. Peabody, 
"as a well educated man ought to know together with an analysis 
and exposition of the Constitution of the United States. His 
lectures were clear, strong, and impressive, and were full of 
materials of practical interest and value. The students, I think, 
fully appreciated the privilege of having for one of their teachers 
a man who had no recognized superior at the bar or on the 
bench."(i) 

Such a course, however, good as it might be, did not, in any 
way furnish an adequate education for a young man intending 
to take up the profession of the law. No one man saw this 
more clearly than the Professor himself. The start, however, had 
been made. The process must be carried to completion. 

(i) Harvard Reminiscences, by A. P. Peabody (1888). 

"His lectures were of an elementary nature adapted to the youthful 
minds of his audience and were characterized by that free and flowing style 
which so eminently marks the judicial opinions of this judge." 

See Report of the Law School Visiting Committee of the Board of 
Overseers, Feb. 7, 1849. 



CHAPTER XV. 
THE FOUNDING. 

The experiment of giving law lectures to the undergraduates 
had proved, after a year's trial, that a more advanced and inti- 
mate connection of the University with legal education might be 
successful. 

The founding of a separate School of Law was therefore pro- 
posed, described later by Professor Stearns, in his report of 
1825, as follows :( i ) 

The Law School was established in 1817 by the Govt. of 
the University, with the advice and under the patronage of some 
of the most distinguished professional gentlemen and friends of 
that institution in its vicinity. This measure was adopted with 
the hope of providing a more systematic and thorough course 
of legal instruction, and a better preparation for the practice 
than is generally attainable in the usual way of acquiring a 
law education. 

With a knowledge of the difficulties which students have to 
encounter at the commencement of their professional studies, 
they were likewise aware how impossible it is for gentlemen 
engaged in the duties of a laborious profession to devote so 
much time as is necessary to the instruction of their pupils. 

The advancement of literature and science in our country, 
and the manifest advantages derived from the establishment of 
college and other institutions for the education of students in 
Theology and Medicine, left no room to doubt, whether it was 
not equally important that similar advantages should be enjoyed 
by those engaged in the no less difficult study of the Law. 

It was thought that the time had arrived, when the demands 
of the public for the means of thorough and methodical educa- 
tion of all engaged in the study of the liberal professions, should 
be complied with ; especially of those who are to administer the 
laws, defend the rights of their fellow citizens, and become in 
no inconsiderable degree the directors of public opinion, and 
the guardians of the public liberty and welfare. 

To Isaac Parker, the credit is due of being the real founder of 
the School. The idea was really his; and on May 14, 1817, he 



(i) See Harvard College Papers, Vol. XL 



THE FOUNDING. 305 

presented to the Corporation, in writing, a plan for a new Law 
Professorship, and for the constitution of a separate school or 
department of the University, which was adopted by the Corpor- 
ation almost word for word as written by him. 
In his letter he said(i) : 

The present mode of education is necessarily deficient, as it 
is obtained principally in the offices of eminent practitioners, who 
are unable from their constant application to business, to act 
the part of instructors. It is believed that a school at Cam- 
bridge, under the immediate care of a learned lawyer, whose 
attention would be principally directed to the instruction of his 
pupils, would afford opportunities for laying a solid foundation 
of professional knowledge, which would be cheerfully embraced, 
and would be found highly beneficial. The undersigned pro- 
poses that there should be a vote of the Government, establish- 
ing such a school, and constituting a department connected with 
the University. 

He proposed that students should be charged $100 a year 
"the average price of education in the country ;" and he further 
agreed : 

to bestow as much of his time upon the school as can be spared 
from his other public duties, and will, in the intervals of his 
judicial labours, visit the school as often as possible, converse 
with the students on the subjects they may be engaged in, ex- 
amine them occasionally, and as often as possible read to them 
a prepared lecture upon such subjects as shall be found most 
conducive to their improvement. 
% 

The following is the official record of the birth of the School : 

At a meeting of the Corporation of May 14, 1817, present, 
i, The President; 2, Mr. Gore; 3, Judge Davis (Treas.) ; 4, 
Mr. Lowell; 5, Judge Phillips. 

The Royall Professor of Law, having represented to this Board, 
that, in his opinion and in that of many friends of the Univers- 
ity, and of the improvement of our youth, the establishment of 
a school for the instruction of students at law, at Cambridge, 
under the patronage of the University, will tend much to the 
better education of young men destined to that profession, and 
will increase the reputation and usefulness of this Seminary; 
and the Corporation concurring in these views, it was voted, as 
follows : \ 

i, That some Counsellor, learned in the law, be elected, to be 

(i) Harvard C 'liege Papers, Vol. VIII. 
to 



306 HARVARD LAW SCHOOL. 

denominated University Professor of Law, who shall reside in 
Cambridge, and open and keep a school for the instruction of 
graduates of this or any other university, and of such others as, 
according to the rules of admission, as attorneys, may be ad- 
mitted after five years study in the office of some Counsellor. 

2, That it shall be the duty of this officer, with the advice of 
the Royall Professor of Law, to prescribe a course of study, to 
examine and confer with the students upon the subjects of their 
studies, and to read lectures to them appropriate to the course 
of their studies, and their advancement in the science, and gen- 
erally, to act the part of a tutor to them, in such manner as will 
improve their minds and assist their acquisitions. 

3, The compensation for this instruction is to be derived from 
the students ; and a sum not exceeding one hundred dollars a 
year shall be paid by each one attaching himself to this school ; 
but this sum shall be subject to be reduced hereafter by the Cor- 
poration, if, in their judgment the emoluments of the school 
shall make such reduction reasonable, and consistent with the 
interests of the establishment. 

4, The students shall have access to the college library on 
such terms as the Government of the University shall pre- 
scribe, and a complete Law Library be obtained for their use 
as soon as means for that purpose may be found. 

5, The students shall be permitted to board in commons on the 
same terms as the other members of the college ; and such 
accommodation shall be afforded them in respect to lodging 
rooms, as may consist with the urgent claims of the existing 
establishment. 

6, As an excitement to diligence and good conduct, a degree 
of bachelor of laws shall be instituted at the University, to be 
conferred on such students as shall have remained at least eighteen 
months at the University School, and passed the residue of their 
noviciate in the office of some counsellor of the Supreme Court 
of the Commonwealth, or who shall have remained three years 
in the school, or if not a graduate of any college, five years, pro- 
vided the Professor having charge of the same shall continue to 
be a practitioner in the Supreme Judicial Court. 

7, The students shall have the privilege of attending the lec- 
tures of the Royall Professor of Law, free of expense, and shall 
have access to the other Lectures of the University usually 
allowed to be attended by resident graduates, without charge, or 
for such reasonable compensation, as the Corporation, with the 
assent of the Overseers, shall determine. 

8, The law students shall give bonds for the payment of the 
college dues, including the charge of the Professor for instruc- 
tion, which shall be inserted in the quarter bills and collected by 
the college officer ; and the sums received for instruction, shall, 
when received be paid over by said officer to the Professor. 



THE FOUNDING. 307 

9, The Law Students shall be on the same footing generally, in 
respect to privileges, duties and observances of College regula- 
tions, as by the laws pertain to resident graduates. 

Voted That the foregoing votes constituting a new department 
at the University be laid before the Overseers that they may 
approve the same if they see fit. 

Agreeably to the statutes relative to a Law School at the 
University, Ballots being brought in the Hon. Asahel Stearns was 
chosen. 

These votes being laid before the Overseers, on May 15, 1817, 
referred to a committee consisting of Hon. Timothy Bigelow, 
Hon. Artemas Ward and Hon. Judge (Charles) Jackson (the 
latter a judge of the Massachusetts Supreme Court, and elected 
as Overseer in 1816, on the death of Samuel Dexter). On June 
12, 1817, there being present "His Excellency Gov. Brooks and 
most of the Hon. Council and the Hon. Senate, President Kirk- 
land, Rev. Richard R. Eliot, Rev. Dr. Porter, Rev. Dr. Harris, 
Rev. Mr. Gray, Rev. Charles Lowell, Rev. John Codman" it was 
voted to concur with the Corporation and also "to proceed to the 
choice of a gentleman to reside at Cambridge as Professor of 
Law." 

At a later meeting on June 26, Hon. Asahel Stearns was unan- 
imously elected ; and Hon. Charles Jackson, Rev. Mr. Dexter, 
and Hon. William Prescott were appointed a committee "who 
with the committee of the Corporation, Hon. John Phillips and 
the President, were to wait upon Mr. Stearns and request his 
acceptance." 

While the legal conditions of the times may have been ripe for 
a Law School, the financial and social conditions made it a bold 
and hazardous experiment. 

The War of 1812 had left New England, and especially Massa- 
chusetts, in an impoverished condition. Its shipping had been 
ruined by the war, and the coming of peace wrecked its newly 
budding manufactures. English goods flooded in from over- 
stocked England and ruinously undersold American manufac- 
turers. Most of the large cotton and woolen factories closed 
their doors. The population of New England increased slowly ; 
for thousands of its families emigrated to Western New York 
and the new Middle States a movement facilitated by the 
increase of turnpikes and the introduction of the steamboat. The 
new tariff of 1816 did not give the impetus to manufactures that 



3 o8 HARVARD LAW SCHOOL. 

had been hoped for. To add to the troubles, disorder in the 
currency set in, caused partly by the fever of Western land spec- 
ulation, partly by bad banking. The chartering of the United 
States Bank in 1816 had not materially helped matters. And by 
1817, the hard times were seriously felt by the people at large. (i) 

It was, therefore, an unfortunate period in which to expect 
many families to send their sons to a collegiate institution, to 
acquire a legal education expensive, as compared to former 
methods ; although, it is true, the expenses of a student in those 
days do not seem heavy in comparison with those of the pres- 
ent day. Thus, in the President's first Annual Report, of Jan- 
uary 1827, the estimate of necessary expenses was as follows: 
steward and commons, $10; board, 38 weeks, at $1.75, $66.50; 
instruction, average, $55 ; rent of study in college, average, $i I ; 
library, $3; text books, $12.50; charges for lecture rooms, gen- 
eral repair, care of chamber, catalogue, $14; total, $172.00; 
wood, commonly about $7 ; a room in a private house from $30 
to $45 a year ; washing, $3 to $5 a quarter ; board in town, $1.75 to 
$3 a week. (2) And a law student's expenses would be about 
the same, with $100 for tuition. 

Nevertheless, that Harvard College was regarded as an expen- 
sive place, is illustrated by a letter from John Randolph, of Roa- 
noke, to Josiah Quincy, Dec. n, 1813, written from Rich- 
mond (3) : 

I had like to have forgotten to tell you that your University 
is decried in this quarter. The change of Socinianism we once 
discussed together ; but a heavier one is now advanced against 



(1) See Adams' History of United States, Vol. IX, Chapters IV and 
VII ; and McMaster's History of United States, Vol. IV. 

(2) See Letter of J. Sparks to Davis Hund, May 23, 1812: 

"The Quarter bill for board, tuition, room rent, etc., will generally aver- 
age about $45 a quarter ($180 a year). Some other contingencies will make 
college expenses about $200 a year, and considering clothes a person maybe 
considered very economical if his yearly expense do not exceed $250. There 
are more who spend $500 than there are who fall short of $250." 

And see letter of Charles Folsom to Sparks, July 17, 1829: 

"The steward estimates every necessary expense of a student (supposing 
him to have a chum) at $190, i. e., exclusive of clothes, washing and 
pocket money, call it $200. Diminish this by the average of the benefactions 
stated above (the largest $60, the least $15) and you have what I suppose 
you want. For a distinguished scholar (not college freshman five who 
receive $120 each and four who have charge of recitation rooms, $60 
each) I suppose the average to be about $150 per annum." 

Life and Writings of Jared Sparks, by Herbert B. Adams (1893). 

(3) Memoir of Josiah Quincy, by Edmund Quincy (1867). 



THE FOUNDING. 309 

you at least, according to the maxims of this calculating age. 
Tis said that your Principal and Professors take a pride in the 
extravagance of the students, and encourage it, while Yale zeal- 
ously inculcates the sublime truths of Poor Richard's Almanac. 
Be this as it may, some of our southern youths have left a great 
deal of cash at Cambridge, and brought away nothing valuable 
in return for it. We are so much poorer in this quarter than you 
wealthy Bostonians, that we smart under an expense that you 
would scarcely feel. ... I deemed it proper to apprise you 
of the fact that such reports are circulated, and with some 
industry. They have been the means of sending some of our 
young men to Yale, instead of Cambridge. 

The second economic impediment, which must always be 
borne in mind, was the difficulty of access to Boston, from the 
States outside of New England. Even at this time (1817), it 
took two days to go from Boston to New York, two and a half 
days to go from New York to Washington, four days from New 
York to Buffalo, five and a half days from Philadelphia to 
Pittsburg. The mail from Washington to New Orleans, for a 
long time after 1817, took twenty- four days. On the few routes 
where steamboats were running the fares were high and the 
trips infrequent. 

One other condition of the times a social one undoubtedly 
kept students away from the Law School. Harvard was regarded 
as the nest of Unitarianism. And at this time the feud between 
the Congregationalists and the new Unitarians was bitter. In 
1805, Harvard College had appointed Henry Ware, a preacher of 
Unitarian tendencies, as Hollis Professor of Theology. Many of 
the prominent men in Boston and especially of the leaders of the 
Bar and those interested in the College were of the same religious 
sect. By 1817, there were seven or eight churches, called 
Unitarian, in and around Boston. In 1819, William Ellery Chan- 
ning gave the new movement its first definite form. The new 
Divinity School at Harvard became, at this time, more and more 
Unitarian. ( I ) 

But outside of Boston the well to do merchants and lawyers 



(i) In 1820. the noted case of Baker v. Falcs was decided in the 
Massachusetts Supreme Court (16 Mass. 488), which resulted in the 
turning over to the Unitarians of a large amount of the church property 
of the old orthodox Congregational churches. 

In this case, Daniel Davis, Solicitor General, appeared for the plaintiff, 
and Daniel Webster for the defendants. 



3 io HARVARD LAW SCHOOL. 

were Congregationalists or Presbyterians, and would have noth- 
ing to do with those who accepted what they called, "infidel 
beliefs." An interesting example of this aloofness is to be found 
at the end of the following letter, written by President Kirkland 
to Treasurer Davis, Feb. 28, 1819(1) : 

We left Boston the I3th January, and passed the next Sunday 
the I7th at Bedford, 14 miles from Stratford, at Mr. Jay's. . 

. . We reached New York, Monday night, where I passed 
the week till Saturday, when I proceeded to Princeton . . . 
I had an agreeable time with the gentlemen of Nassau Hall, and 
heard two orthodox sermons from Dr. Alexander and Dr. Milley 
(Willey), on Sunday the 24th inst. On Monday I joined Mr. 
Vaughan in Philadelphia, and I continued there until Thursday 
28th, when I went on to Baltimore with Judge Story, Mr. Web- 
ster, Mr. Mason and Mr. Ogden. I preached at Baltimore. The 
next day, Monday, Feb. i, I went on to Washington, and Tues- 
day I made calls, accompanied by Mr. Sawyer, of the House, 
upon the Pres. the heads of departments, the foreign ministers, 
the senators. 

The President was cordial, and asked me to dine every day, 
and particularly on Friday. 

Mr. Clay requested me to preach in the Hall of the House of 
Representatives the next Sunday, 7 Feb., which I did, to a large 
and dignified assembly. . . . 

Stayed in Washington over I4th, Baltimore, 21, Phila., 23rd. 

The beginning of my second week at Washington, i. e., the 
7th day the President requested me to be his guest, i. e., to 
lodge with him, and mentioned that he had not asked me before, 
not having a convenient room. Being engaged for every day and 
evening during my stay, I respectfully declined his kind offer. I 
dined with him a third time on Sunday, the I4th, when he 
repeated his invitation, and I therefore accepted it, staying there 
until Friday morning, i. e., five nights. 

. . . I have seen at one dinner the church ministers at N. 
York, and at another several Presbyterians. But I have not 
generally found the clergy in my walks. I suppose they pur- 
posely often keep out of the way, when they can with decency. 

A very moderate statement of the popular views of the Col- 
lege is given in a letter written to President Kirkland, Oct. 26, 

1824(2): 

(1) See letter (hitherto unpublished) in Harvard College Papers, 
Vol. VIII. 

(2) See History of the Harvard Medical School, by Dr. T. F. Har> 
rington, Vol. II. 



THE FOUNDING. 311 

In conformity with the letter rec'd from you, I have prepared 
such a report or answer, as seeni'd to become my department. 

There is one object involving the interest and prosperity of our 
College, on which I could not speak in the report; and which, 
in truth, I must ask leave to confide to you personally. 

From many inquiries and much observation, I have come to the 
conclusion that the popularity and the prosperity of the College 
is more influenced by religious opinion than any other cause. 
The difference of political opinion has had comparatively no 
effect; now, if our College be unpopular, is it to be attributed 
to its government being in the hands of decided and influential 
federalists? A large part of this community consists of individ- 
uals of religious sentiments opposed to those inculcated at Cam- 
bridge. It is thought by some who have studied the matter that 
two-thirds of the state are strongly opposed to the religious 
opinions which flow from our alma mater. They complain, with 
deep feeling, that Cambridge is not merely a literary seminary, 
but it is a school of sectarian doctrines doctrines, which they 
view with alarm and horror. They ask, what necessary connec- 
tion is there between literature and sectarian religion? Cannot 
you give us a University, without a school of theology? Can- 
not our children be permitted to learn the various parts of a 
scientific education, without imbibing doctrines which we con- 
sider poisonous, and which in our view far outweigh the other 
in importance? Separate the theological school, separate sectar- 
ian instruction ; give a fair representation to those of different 
opinions, and we shall no longer hear of new colleges starting 
up ; we shall not be obliged to send our sons 50 or a hundred 
miles away from us, when the stream of knowledge is floating 
at our doors. 

Such, Sir, is the language which has been held to me repeat- 
edly and earnestly by persons of elevated minds and excellent 
characters; and I confess, for myself, I am sincerely of opinion 
that the interest of our University would have them who are 
anxious for its prosperity and concerned immediately in its wel- 
fare, instead of propagating any exclusive sectarianism, rather to 
build up opportunities for acquiring information from other and 
opposite denominations of Christians. Sects must exist they are 
necessary to the health to the very life of the Christian religion; 
but the very necessity of their existence forbids exclusion. 

As a rule, much more violent expressions of feeling towards 
the College were indulged in by those opposed to its religious 
tenets ( i ) . 



(i) How unjust was this prejudice against the college for its sup- 
posed official Unitarian tendencies, may be seen from the following : 

Form of admission to the Church in Harvard University proposed by 
President Kirkland, Nov. i, 1814. 



3 i2 HARVARD LAW SCHOOL. 

These attacks undoubtedly deterred parents from educating 
their children in the supposedly ungodly institution, and con- 
stantly made necessary such explanations as appear in the fol- 
lowing letter from Judge Story to his classmate, William Will- 
iams, of Tennessee, written Feb. 17, 1823: 

You speak of Harvard College. Its prosperity in literature 
and science is truly great, and in my judgment place it beyond all 
question, as the first literary institution in America. You have 
doubtless heard many misrepresentations as to its religious char- 
acter. I will not disguise that the religious sentiments of its 
President and Professors are far more liberal than those of our 
good Doctor Tappan. By liberal, I mean less Calvinistic and more 
charitable. Unitarian sentiments are certainly prevalent there ; 
but they are not taught as a part of the studies. ... I 
may say, indeed, that by far the most enlightened, learned, and 
able of our present clergy, as well as laity, in Massachusetts, are 
Unitarians, and their opinions are manifestly gaining ground. 
This of course gives much uneasiness to other states, and, as 
usual, gives rise to many false statements. . . . Our class- 
mate, Dr. Channing is a Unitarian minister of most distinguished 
talents and character. ... If you wish to have a child edu- 
cated at Cambridge, I do not think that you need feel his religious 
obligations and feelings will be injured. But in making these 
remarks, I beg you to understand that I myself am a decided 
Unitarian. 

Thus, for religious as well as financial reasons the Law School 
at Harvard was undoubtedly cut off from the supply of students 
which it might otherwise have had. 

The new professor, Asahel Stearns, was, at that time, a well 
known lawyer, forty-three years of age, residing in Charlestown. 



"We present ourselves for admission to this Church in testimony of our 
faith in Jesus Christ, our acceptance of his religion, and subjection to his 
laws. We regard this transaction as an expression of our earnest desire 
to obtain the salvation proposed in the Gospel, and our serious purpose to 
endeavour to comply with the terms on which it is offered. We desire 
to commemorate the author and Finisher of our faith, in the manner 
established in his church. In a humble and grateful reliance on God for 
the pardon of sin and assistance in duty, we solemnly take upon ourselves 
the engagements of the Christian profession. We will, as we shall have 
opportunity, acknowledge our relations to this Christian community, by 
attendance on the services of religion, by the office of Christian affection, 
and by submission to the laws of Christian order, beseeching the God 
and Father of our Lord, Jesus Christ, that being faithful to each other 
and to our Common Master, we may enjoy the consolation of our holy 
religion here, and be accepted to the rewards hereafter, through the 
riches of divine favour in Jesus Christ. 

See Harv. Coll. Papers, Supplement, Vols. V, VI and VII. 



THE FOUNDING. 3*3 

He was born in Lunenburg, Massachusetts, June 17, 1774, grad- 
uated at Harvard in 1797, and began the practice of the law at 
Chelmsford. From 1813 to 1832, he served as District Attorney 
for Middlesex County. In 1817, he had just finished a term at 
Washington, as a Federalist Congressman, representing the Mid- 
dlesex District, having been elected for the years 1815-1816. 
Rev. Dr. Peabody described him as a man "of grave and serious 
aspect and demeanor, but by no means devoid of humour, and 
was a favorite in society. . . . He was warmly interested 
in the public charities of the day, exercised a generous hospi- 
tality, and was equally respected and beloved."(i) 

A writer in the Laiv Reporter on his death, in 1838, said: 
"His integrity was not merely that which the world demands 
and is content with ; it was pure, uncompromising, entire. Nor 
was it mingled with anything of sternness or severity, for his 
kindness and gentleness were constant and universal." 

Mr. Stearns, after taking his election under consideration for 
about a month, finally accepted, in the following letter, July 5, 
1817, characteristically modest (2) : 

I accept with diffidence the appointment which the corporation 
and overseers of the University have done me the honor to make. 

In taking charge of a new department in this ancient and 
respectable Institution, I have much reason to fear that I shall 
be able to fulfill the just expectations of its guardians and 
friends. 

The Corporation had voted, on May 14, 1817, "that the col- 
lege professors of law be desired to frame a course of instruction 
for law students, upon which the judges of the Supreme Court 
are requested to give their advice and opinion" ; and that the 
course proposed be then reported to the Corporation. Profes- 
sor Stearns at once consulted with the judges, and, within a week 
after his acceptance, July n, 1817, he wrote to President Kirk- 
land, the following letter, enclosing a draft for a form of public 
announcement of the new School: 

I have taken the liberty of sketching the outline of a notice, 
conformable to what I understood to be your views. You will 



(1) Old Times at the Law School, by S. F. Batchelder in Atlantic 
Monthly (Nov., 1902). Harvard Reminiscences, by Rev. A. P. Peabody 
(1888)." 

(2) See Han'. Coll. Papers, Vol. VIII. 



3 14 HARVARD LAW SCHOOL. 

please to make such alteration as you deem proper before you 
add your signature. Not being quite sure that I understood 
correctly the time you intended the school should open, I have 
left it blank. 

If I have omitted any of the professors who will deliver public 
lectures, I hope you will be good enough to correct the error. 

Perhaps you will think best to omit saying anything about the 
expense. If you should, you will please to strike it out. 

It will be well, I should think, to publish the notices as soon as 
may be convenient. 

I suggested yesterday the propriety of adding, by way of P. 
S., a request to printers of newspapers in this and adjoining 
States, to publish the notice. But I submit that to your better 
judgment. 

On Saturday, July 12, 1817, there appeared in the Boston 
Doily Advertiser the following editorial notice : 

The Government of Harvard University have lately established 
under the patronage of the University, a school for the instruc- 
tion of students at law. . . . The students, besides attend- 
ing on his lectures and instructions, will have the privilege of 
attending the lectures of the Royall Professor of Law, and other 
lectures of the University usually attended by resident gradu- 
ates . . . will have access to the college library, and a com- 
plete Law Library, to be obtained for their use . . . will be 
permitted to board in commons, on the same terms as other 
members of the college . . . and on having complied with 
the regulations of the institution, will receive the degree of 
bachelor of laws. This school will thus combine advantages for 
obtaining a complete law education, together with facilities for 
improvement in the other departments of useful knowledge, never 
before enjoyed in the country. The school is to go into operation 
at the commencement of the college term, in October next. 

And on July 28, 1817, in the same newspaper, appeared this 
official notification (which, with a few minor changes in phrase- 
ology by President Kirkland, followed Stearns' draft). 

Notice is hereby given, that a Law School is established at this 
University, to commence on the first Wednesday of October, 
under the superintendance of Hon. Asahel Stearns, University 
Professor of Law. 

Candidates for admission must be graduates of some college, 
or qualified by the rules of the courts to become students at law, 
and of good moral character. They will be required to give 
bond for the payment of the quarterly dues including the fee 
for instruction, which is not to exceed $100 annually. Those 



THE FOUNDING. 315 

who desire it will be furnished with commons, upon the same 
terms as undergraduates, and, as far as possible, with lodging 
rooms. They will be allowed to attend, free of expense, all the 
public lectures of the Royall Professor of Law, the private lec- 
tures on Intellectual and on Moral and Political Philosophy 
designed for Graduates, also the publick lectures of the Professors 
generally, comprising the courses on Theology, Rhetoric and Ora- 
tory, Philology, Natural and Experimental Philosophy, Astron- 
omy, Chemistry, and Anatomy and Mineralogy, and other 
branches relating to Physical Science. The Law Students are to 
have access to the University Library (consisting of 20000 vol- 
umes), upon the same terms as other resident graduates, as well 
as to the Law Library, which shall be established. 

A degree of Bachelor of Laws is instituted in the University, 
to be conferred upon students as shall have remained at least 
eighteen months at the University School and passed the residue 
of their noviciate in a manner approved. 

The annual expense of a student, it is believed, will not exceed 
that of private instruction in any considerable town in New 
England. 

Application in writing, or in person, may be made to the 
Registrar of the University, or to the President. 

John T. Kirkland, President. 

Cambridge, July 25. 

The following interesting paragraph in Stearns' draft was 
omitted in the official announcement : 

The Corporation has adopted this measure in conformity to 
the views and wishes of the Judges of the Supreme Court and 
other distinguished legal characters and with the hope of afford- 
ing the youth of our country the means of acquiring a more reg- 
ular and comprehensive law education than is generally attainable 
in the office of a practising counsellor. 

Under the above unpretentious notices, the Harvard Law 
School opened its doors on the first Wednesday of October, 1817. 
On November 5, 1817, came the inauguration of Mr. Stearns as 
University Professor of Law, in the presence of "an unusually 
large company consisting of strangers of distinction, alumni of 
the Institution and gentlemen of the first respectability in the 
higher walks of life . . . with precisely the same forms as 
customary on such occasions. . . . After the exercises the 
Corporation, Overseers, and as many as could be accommodated 
dined together in the Corporation rooms, the rest in the hall 
below."(0 

(i) See Records of the Board of Overseers. 



CHAPTER XVI. 
CAMBRIDGE, AND HARVARD COLLEGE, IN 1817. 

i 

Having obtained a professor, the next thing necessary for the 
new School was a location ; and this was provided by a vote of 
the Corporation, September 5, 1817, as follows: 

Voted, that the President may appropriate the lower north 
room of Mr. Farrar's House to be a Lecture Room and Library 
for the Professor of Law if it shall appear to be wanted for 
those purposes. 

\ 

The "Farrar House," referred to, was a low, two-story, wooden 
building, situated on the northwest side of what is now Harvard 
Square, next to the present Lyceum Hall. In this building, two 
rooms were devoted to the School, one for recitation, the other 
for a professor's room and library. 

Before describing the details of administration of the early 
years of the School, it may be of interest to give a rough pic- 
ture of the town of Cambridge and of the College, in 1817. 

On the first Wednesday of October, in the year 1817, the Har- 
vard Law School first opened its doors. One lone student regis- 
tered his name, although five more entered during the year. 

The Cambridge, however, to which that solitary student the 
predecessor of the 719 law students of to-day turned his steps, 
and among whose traditions and conditions the early law students 
acquired a knowledge of their profession, was a far different 
place from the city of to-day. It was then a peaceful country 
town cut off from Boston by its situation independent, quiet, 
and studious. 

Perhaps the quaintest contemporary account of it is that given 
by Timothy Dwight, President of Yale College, in his Travels in 

New England, written in the year 1812(1) : 

( 

The settlement of Cambridge was begun under the immediate 
direction of the government, in the year 1631. The town was 
laid out in squares ; one of which was left open for a market, 

(i) Travels in New England, by Timothy Dwight (1821). 



CAMBRIDGE IN 1817. 

and is now known by the name of Marketplace. (i) Four of 
the streets run from North to South, and three from East to 
West. The houses exhibit every gradation of building, found 
in this country, except the log-hut. Several handsome villas, 
and other handsome houses are seen here, a considerable number 
of decent ones, and a number, not small, of such as are ordinary 
and ill-repaired. To my eye this last appeared as if inhabited by 
Men accustomed to rely on the University for their subsistance ; 
men, whose wives are the chief support of their families by board- 
ing, washing, mending, and other offices of the like nature. The 
husband, in the mean time, is a kind of gentleman at large ; exer- 
cising an authoritative control over everything within the purlieus 
of the house ; reading newspapers, and political pamphlets ; decid- 
ing on the characters, and measures, of an Administration ; and 
dictating the policy of his country. In almost all families of this 
class, the mother and her daughters lead a life of meritorious 
diligence, and economy : While the husband is merely a bond of 
union, and a legal protector of the household. Accordingly, he 
is paid and supported, not for his services, but for his presence. 
In every other respect he is merely nugae canorae; just such an- 
other talking trifle as a parrot ; having about as much understand- 
ing, and living just about as useful a life; a being, creeping along 
the limits of animated and unanimated existence ; and serving, 
like an oyster, as a middle link between plants and animals. If 
such men are not found here, Harvard College may boast of 
exclusive privileges. This thought struck me irresistibly, as I 
was walking in the streets. How far it is applicable in fact, I am 
not informed. 

The public buildings in this town, are two churches, a Presby- 
terian, and an Episcopal ; the latter small, and in very bad repair ; 
a grammar school-house ; a court-house ; a goal ; and an alms- 
house. 

A more poetic description is given by Lowell, in his memories 
of Cambridge of Thirty Years Ago, written in 1854: 

Approaching it [the town] from the west by what was the 
new road (2) you would pause on the brow of Symonds' Hill 
to enjoy a view singularly soothing and placid. In front of 
you lay the town, tufted with elms, lindens, and horse-chestnuts, 
which had seen Massachusetts a colony and were fortunately 
unable to emigrate with the Tories by whom or by whose fathers 
they were planted. Over it rose the noisy belfrey of the College, 
the square brown tower of the church, and the slim yellow spire 
of the parish meeting-house, by no means ungraceful and the 
one invariable characteristic of New England religious archi- 

(1) Now (1908) Winthrop Square. 

(2) Now Concord Avenue. 



3i8 HARVARD LAW SCHOOL. 

lecture. On your right the Charles slipped smoothly through 
green and purple salt-meadows, darkened here and there with 
the blossoming black-grass as with a stranded cloud shadow. 
Over these marshes, level as water but without its glare, 
. . . the eye was carried to a horizon of softly rounded hills. 
To your left hand upon the old road you saw some half-dozen 
dignified old houses of the colonial time, all comfortably front- 
ing southward. If it were early June the rows of horse-chest- 
nuts along the fronts of these houses showed through every crev- 
ice of their heap of foliage and on the end of every drooping limb 
a cone of pearly flowers . . . Such was the charmingly rural 
picture which he, who thirty years ago went eastward over Sym- 
onds' Hill, had given him for nothing, to hang in the Gallery 
of Memory. . . . We called it "the Village" then, and it 
was essentially an English village, quiet, unspeculative, without 
enterprise, sufficing to itself. A few houses, chiefly old, stood 
round the bare Common with ample elbow-room. 

Up to the beginning of the Nineteenth Century, the two main 
avenues of the town had been the old highways the King's 
Highway, leading from Charlestown to Watertown, and the 
Turnpike Road to Menotomy, leading from the Great Bridge 
(built in 1662) along what is now Boylston Street, passing the 
College buildings, crossing the King's Highway and continuing 
up Massachusetts Avenue (formerly North Avenue). 

In November, 1793, the West Boston Bridge had been built 
at a cost of $76,000. It was described by the Independent Chron- 
icle as "for length, elegance, and grandeur not exceeded by any 
in the United States, if in any part of the world."(i) The 
Cambridge and Concord Turnpike was continued a few years 
later to meet the causeway at the end of the bridge. In 1809, the 
Canal Bridge (now known as the Craigie or East Cambridge 



(i) The Columbian Ccntinel of November 27, 1793, in describing the 
opening of the bridge said : "The elegance of the workmanship and the 
magnitude of the undertaking, are perhaps unequaled in the history of 
enterprises. We hope the proprietors will not suffer pecuniary loss from 
their public spirit." 

Judge Iredell of the U. S. Supreme Court, whil'e holding Circuit Court 
in the Eastern Circuit, wrote to his wife, May 27th, 1795 : "The improve- 
ments in almost every part of America are wonderful. The bridge between 
Boston and Cambridge far exceeded my expectations. The causeway lead- 
ing to Cambridge which is railed in like the bridge is a mile and a quarter 
long ; and the bridge itself three-quarters of a mile, the whole as straight 
as an arrow ; the carriage-way very wide, with passages on each side for 
foot-passengers, beautifully painted and with an astonishing number of fine 
lamps all along on each side. The river is very deep and very rapid, 
notwithstanding which the whole of this bridge was completed, so as to 
be passable at least, in about six months." 



CAMBRIDGE IN 1817. 319 

Bridge) was opened; and at the same time Cambridge Street 
was built, leading from Lechmere Point (East Cambridge) to 
the Colleges. At this time there was only one dwelling-house 
on Lechmere Point. 

The topography of Cambridge around the College Yard was 
that of a pleasant country villiage. Near the present corner of 
Mt. Auburn Street and DeWolfe Street stood, as now, the hand- 
some, square, colonial mansion of Squire William Winthrop, the 
son of Prof. John Winthrop. 

Opposite the College Yard on Braintree Street (later Main 
Street, now Massachusetts Avenue) was the large estate, and 
the house (now standing) known as the "Bishop's Palace," built 
in 1760 by the first Episcopal Rector of Christ Church in Cam- 
bridge, Rev. Mr. Apthorp. Farther along to the west on Brain- 
tree Street, the other old pre-Revolutionary estates, with their 
gardens, had only recently been cut up into smaller lots. On 
the east corner of Braintree Street and Crooked Street, now 
Holyoke Street (where the Porcellian Club stands), was the 
store of John Owen, the publisher the University Bookstore. 
On the opposite corner of Crooked Street was a dwelling-house. 
The present site of Sever's Bookstore had been, in the i/th Cen- 
tury, the old village pond, but in 1817 it had long been filled in. 
Next, on the corner of Dunster Street, stood a house owned by 
the College, and used as a dormitory (1817-1823), known as 
College House No. 3. Behind, on Dunster Street, was the old 
garden of Judge Dan forth, and a lot on which stood a printing 
office, both owned by the College. On the opposite corner of 
Dunster Street (the home, in 1638, of Stephen Day, the first 
printer in America) stood Willard's Hotel, where the public 
booked for places in the hourly stage for Boston, fare twenty- 
five cents or for Cambridgeport, fare eighteen and three-quart- 
ers cents. "At nine and two o'clock Morse, the stage-driver, 
drew up in the College Yard and performed upon a tin horn 
to notify us of his arrival. Those who went to Boston in the 
evening were generally forced to walk. It was possible, to be 
sure, to hire a chaise of Jeremy Reed, yet his horses were expen- 
sive animals, and he was very particular in satisfying himself of 
the undoubted credit of those to whom he let them," writes Josiah 
Quincy, of the Class of 1821, in his Figures of the Past, and Dr. 
A. P. Peabody, of the Class of 1826, speaks of "that dreary walk 



320 HARVARD LAW SCHOOL. 

to Cambridge in dense darkness, with no lights on our way, 
except dim oil lamps at the toll-houses, over a road believed to 
be infested with footpads, but on which we neither met nor 
passed a human being between the bridge and the College Yard. 
Indeed . . . the road was then so lonely that we used to 
make up parties of four or five to attend meetings or lectures in 

Boston."(i) 

On the corner of Boylston Street, in 1817, stood Deacon Levi 
Farwell's country store. Across Harvard Square, on its west 
side, stood the old Middlesex County Court House (on the pres- 
ent site of the Lyceum Building), a square, wooden building with 
a cupola, built in 1758, and removed, in 1841, to the corner of 
Brattle and Palmer Streets (where it now stands). Abandoned 
for court purposes, when the court moved to East Cambridge, in 
1 8 1 6, it continued to be used for town meetings until 1831 ; and 
as Lowell wrote : 

The old Court House stood then [1824] upon the Square. It 
has shrunk back out of sight now ; and students box and fence 
where Parsons once laid down the law, and Ames and Dexter 
showed their skill in the fence of argument. Times have 
changed, and manners, since Chief Justice Dana (father of Rich- 
ard the First and grandfather of Richard the Second) caused 
to be arrested, for contempt of court, a butcher who had come 
in without a coat to witness the administration of his country's 
laws, and who thus had his curiosity exemplarily gratified. Times 
have changed since the cellar beneath it was tenanted by the twin 
brothers Snow. Oystermen were they indeed, silent in their 
subterranean burrow, and taking the ebbs and flows of custom 
with bivalvian serenity. Careless of the months with an R. in 
them, the maxim of Snow (for we knew them but as a unit) 
was "When 'ysters are good, they are good ; and when they ain% 
they isn't." 

For 1 20 feet north of the Court House, there was a garden, 
and then an old, two-story, wooden dwelling, with a gambrel 
roof, much after the style of the present Wadsworth House. 
It had formerly been occupied by Samuel Webber, President of 
Harvard College, 1796-1806, at the time when he was Profes- 
sor of Mathematics and Natural Philosophy. Known at various 
times as the Williams House, the Russell House, the Farrar 



(i) It is to be recalled that the first gaslight company in the country 
the Boston Gas Light Company was not incorporated until 1826, and 
that by 1834 the city of Boston had only 34 gaslights in its streets. 




w 

O 

Q 



P5 
S 
-t! 



CAMBRIDGE IN 1817. 321 

House, and also as College House No. 2 this was the first site 
of the first Harvard Law School, which occupied two rooms 
of its lower story. In front was a fence on which the whole Law 
School of those early days could easily perch. Next to this was 
a long structure called the Smith House; and on its site a little 
later, and farther back from the street, was a small one-story 
building which sheltered the College fire-engine. 

About 50 feet north of College House No. 2, and near the 
location of the present Church Street, was College House No. 
i, a wooden three-story building with brick ends, long called 
by the students "Wiswall's Den." It contained 12 rooms, and 
these, together with the rooms in College House No. 2, were 
occupied by law students and undergraduates who could not 
get rooms in the Yard, and, says Dr. Peabody, "in great part 
by certain ancient resident graduates who had become water- 
logged on their life voyage, by preachers who could not find 
willing listeners, by men lingering on the threshold of profes- 
sions for which they had neither the courage nor capacity."(i) 

In the lower story of this building was Marcus Remy's bar- 
ber-shop, whose "sunny little room, fronting southwest upon the 
Common, rang with canaries and Java sparrows," wrote Lowell, 
and was "a museum of wonders." In it was also a haberdash- 
er's shop, kept by two impoverished ladies of family, who rented 
to students, at two and three dollars, flimsy gowns for Com- 
mencement. Forty-one feet next north, towards the graveyard 
(where the Unitarian Church now stands), was the Manning 
House ; and next the Deacon Kidder House, both owned and 
rented by the College. 

Cambridge Common then extended from Waterhouse Street 
to Boylston Street, including the present Harvard Square. It 
was an unfenced, unimproved, dusty plain, its grass cut up 
and scrubby, from the constant passage of herds of cattle driven 
down the Menotomy and Concord turnpikes on their way to 
Brighton, Boston, and beyond. On Commencement Days it was 
used as a great campus for the erection of booths and tents, 
like a county fair-ground. 

In the middle of what is now Harvard Square stood the town 
pump and scales, and the market-house, a small square one-story 



(i) Sixty Years Ago in Harvard Reminiscences, by A. P. Peabody 
(1888). 
21 



322 HARVARD LAW SCHOOL. 

building (removed about 1830). Great elms lined both sides 
of the Square. In the middle of the Square stood also that old 
milestone, long located, after 1830, in front of Dane Hall, bear- 
ing the apparently lying legend at which so many law students 
have marveled, "8 miles to Boston A. D. 1737." They forgot 
that the road to Boston, prior to 1793, was over the Boylston 
Street Bridge, through Brookline to Roxbury, and over the Neck 
up Washington Street to the old State House on State Street. 

Opposite the College Houses No. i and No. 2, in a lot carved 
out of the College grounds, stood the old meeting-house of the 
First Church, erected in 1756 on part of the President's orchard. 
Its north wall occupied the site of the south foundation of the 
present Dane Hall "so Law and Divinity rest here on the same 
base," it has been said. In this building, the Provincial Con- 
gress, with John Hancock as its President, had met in 1774. 
Here, five years later, met the convention which framed the Mass- 
achusetts Constitution in 1779. Here, for 70 years, were cele- 
brated all the College Commencement exercises and inaugura- 
tion ceremonies. Here Lafayette was to be welcomed, seven 
years later, in 1824. In 1833, the church building was sold to 
the College and removed. 

In the churchyard, near the present corner of Matthews Hall, 
was the College fire-engine house, before it was moved across 
the Square. Back of the church was the President's orchard. 
Next to the church, and standing where it now stands, was the 
President's, or Wads worth House, erected in 1726. Sixty feet 
to the east, in what is now the College grounds, was an old 
house owned by the College, and rented in 1811 to Professor 
Ware. One hundred and twenty feet further east, about on the 
site of the present Boylston Hall, was another old house rented 
to Professor Hedge. Where the Gate of the Class of '76 now 
is, and extending back to the present site of Gore Hall, was the 
lot known as the "Tutor's Lot," or "Tutor's Orchard." East 
of this was the "ancient and unsightly" parsonage of the First 
Church, occupied up to 1807 by Rev. Abiel Holmes, the father 
of Oliver Wendell Holmes. (i) The house on the corner of 
Quincy Street (now known as the Peabody House) had just 
been built, in 1811, and was occupied in 1817 by members of the 
family of Chief Justice Francis Dana. 

(i) Built in 1670, partly rebuilt in 1790, occupied after 1807 by Prof. 
Henry Ware, removed in 1843. 



CAMBRIDGE IN 1817. 323 

In the College Yard, Stoughton Hall, "a neat building," wrote 
President Dwight, had been built only thirteen years (1804); 
Holworthy Hall, five years (1812) (i). University Hall, called 
the "handsomest building in the State," had just been built, 
(1815), its architect being the famous Charles Bulfinch. In its 
basement was the College Kitchen. The ground floor had two 
dining-rooms, one used by seniors and sophomores, the other by 
freshmen and juniors. In the second and third stories was the 
College Chapel, with seats on one side for the seniors and sopho- 
mores and on the other for the juniors and freshmen, and with 
different entrance doors, "so that there might be no hostile col- 
lision on the stairs," says Dr. Peabody. "In front of the pul- 
pit was a stage for public declamations and exhibitions and on 
each side of it a raised sentry-box occupied at daily prayers by a 
professor or tutor on the watch for misdemeanors. Opposite 
the pulpit was the organ with a double row of raised seats on 
each side one for the choir, the other for parietal officers and 
graduates. There were two side galleries for families of the 
professors." In the second story of the southern end were two 
rooms for the use of the Corporation; and at the northern end 
and in the third story were six recitation rooms. Orig- 
inally there was a roofed piazza, on the front of the build- 
ing, which was later removed to check the "grouping" of stu- 
dents, then a penal offence. 

Just south of where the old College pump so long stood were 
the College wood-yard, and the College brewery, until it was 
burned by students in 1814. Massachusetts and Hollis Halls 
were the other dormitories, having 32 rooms each, the lower 
floors being reserved for freshmen. Harvard Hall contained 
the College Library in its second story; and in the lower story 
were the philosophical and physical chamber and apparatus, and 
the mineralogical cabinet. Holden Chapel, then divided into 
two stories, contained in its lower floor the chemical laboratory 
and lecture-room, and above a lecture-room. "The plan for 



(i) The following curious letter is to be found in Harvard College 
Papers, Vol. VII, p. 10, written by President Kirkland to Treasurer Davis 
in 1812 : "I find some gentlemen are sorry to have our new college receive 
so hard a name Holworthy Hall has two aspirates besides the W. & 
the T. H. which twist and squeeze the organs not a little. Is there any 
other better or more suitable or will you reconsider on account of the 
objection which is of some consequence." 



324 HARVARD LAW SCHOOL. 

locating these buildings, if any such plan existed, was certainly 
unfortunate," wrote Timothy Dwight in 1812. 

On Holyoke Street, not far down from the corner of Mt. 
Auburn Street, lived Professor Willard, in the former home of 
Dr. Holyoke, President of the College. A house where the 
Roman Catholic Church stands, on the corner of Holyoke and 
Mt. Auburn Streets, had been the home of the famous Judge 
Edmund Trowbridge; and was in 1817 the home of the children 
of Chief Justice Dana. On Dunster Street, near the corner of 
Winthrop Street, was the site of the first tavern of the town, 
inhabited in 1817 by Thaddeus W. Harris, later the College 
Librarian. Between Dunster and Boylston Streets lived the post- 
master, Joseph S. Read, with whom many early law students 
lodged. On the corner of Boylston Street and Winthrop Square 
was the house of Judge James Winthrop, the Register of Pro- 
bate, and not far off on Winthrop Street was the Jail. Oppo- 
site Judge Winthrop's, on the corner of Mt. Auburn and Boyls- 
ton Streets, was the famous Blue Anchor Tavern, or Porter's, 
as it was known in 1817 the great resort for students, and 
famous for its punch on Commencement Days. 

West of Brattle Square (where Brattle Hall now is) was the 
town spring, and a good-sized pond with an island, and hand- 
some grounds extending to the river. On this estate stood the 
Brattle House, in which Margaret Fuller lived in 1833, an ^ 
which was long used as a student's lodging-house in the 2o's and 
3o's. In the 5o's the pond was filled up; and a large, square, 
ugly hotel, known as Brattle House, was built on its site, later 
purchased by the Law School for a dormitory, and still later 
sold to John Wilson's University Press. Windmill or Bath 
Lane (Ash Street) led to a bathing-place for students on the 
river. 

In the Craigie House, in 1815, was living Dr. Andrew Craigie, 
who built the Lechmere Point or East Cambridge Bridge. Seven 
years later, in 1822, Edward Everett, then Professor of Greek, 
boarded there for a few years; and in 1837 Professor Henry 
W. Longfellow took rooms in this house, which he bought later. 
Farther to the west on Brattle Street was "Tory Row" the 
estates of many Royalists whose property had been confiscated. 
The estate now known as "Elmwood" had been owned by El- 
bridge Gerry, until his death, in 1812, while Vice-President of 
the United States; six years later, in 1818, Rev. Charles Lowell,. 



CAMBRIDGE IN 1817. 325 

son of Judge John Lowell, bought it; and on Feb. 22, 1819, 
James Russell Lowell was born there. ( I ) 

In the house on the corner of Garden and Mason Streets (now 
Radcliffe College), in 1817, lived Joseph McKean, Professor of 
Rhetoric and Oratory. In the northwest room, in 1836, Rev. 
Samuel Gilman, of Charleston, while a guest at the celebration 
of the 2OOth Anniversary, wrote Fair Harvard. On Waterhouse 
Street, facing the Common, William Ware, the author of Zeno- 
bia, was living in 1817. On Holmes Place, near the site of the 
present Austin Hall of the Law School, there were four houses, 
in the second of which lived Rev. Caleb Gannett. Here later 
was the station of the Harvard Branch of the Fitchburg Rail- 
road, and still later the College eating-house for students, known 
as Thayer Commons. Nearer the present Gymnasium was the 
old Holmes House, from which Gen. Joseph Warren went to the 
Battle of Bunker Hill. In 1807, Judge Oliver Wendell purchased 
it; and there Oliver Wendell Holmes was born, in 1809. The 
first house on Kirkland Street was the home of Stephen Hig- 
ginson, Jr., the College Steward, where, in 1823, Thomas Went- 
worth Higginson was born. Beyond this, extending to the 
Charlestown line, were the 120 acres of the Foxcroft Estate, on 
which stood the house of James Hayward, later Professor of 
Mathematics; the house near the corner of Oxford Street, in 
which Asahel Stearns, first professor of the Law School, lived; 
the house of John Farrar, Professor of Mathematics and Natural 
Philosophy; and that of Rev. Henry Ware, Hollis Professor of 
Divinity, in which Charles Eliot Norton now lives. This was 
the so-called "Professors' Row." 

In 1817, that part of Cambridge east of Quincy Street and 
extending to the Neck, including Cambridgeport, was mostly 
pastures, woodland, salt marsh and flats, formerly owned by the 
Goffe and Inman families. As late as 1793, there were only 
four houses on this great tract the principal one being near 
Dana Street, formerly owned by Judge Edmund Trowbridge 



(i) Judge Iredell wrote to Mrs. Iredell Oct. 7, 1792, from Boston: "I 
persuaded our driver to go a little out of his usual route that I might see 
Cambridge, the seat of the University of this State, and about 3 l /t miles 
from town across the famous Charlestown Bridge. I had great reason 
to be satisfied, for it is a most beautiful place and contains many very 
elegant houses. Mr. Gerry among others has a delightful one in a most 
beautiful situation. . . . The bridge fully equaled my expectations; 
it is indeed a very noble one." 



326 HARVARD LAW SCHOOL. 

and occupied by Chief Justice Dana till his death in 1811. Here 
Rev. William Ellery Channing had his home during his college 
course, up to 1798. The only other house of importance was the 
Inman House, a little south of the site of the present City Hall. 

After the building of the West Boston Bridge, in 1793, land 
speculators put up several brick buildings; a store and a dwell- 
ing-house were built on the causeway near the corner of Main 
and Front Streets, in 1793 and 1795; and several taverns and 
a scattered group of houses were built a few years later; so 
that in 1806 there were about 100 families living in the Port. 
The Cambridge and Concord Turnpike Corporation, chartered 
in 1803, had extended its turnpike to the West Boston Bridge 
in 1805. But, in general, Cambridgeport was not a place of much 
size or prosperity. "In January, 1805, an act of Congress made 
this place a Port of Delivery, and from which it derived the 
name of Cambridgeport. Anticipation looked forward to its 
becoming a commercial place, and the borders of Charles River 
the depot of its active operation. Roads and canals were formed 
for its accommodation at great expense, and wharves to some 
extent were actually constructed. An earthquake could have 
been but little less destructive to these enterprises than was the 
embargo." So writes an old resident. "This horned calamity 
(the Embargo Acts 1807-1809) palsied the energies of this 
thrifty village, and produced a torpor and protracted debility 
which all her efforts could never shake off."(i) 

President Dwight wrote of it in 1812: 

Since the building of West Boston Bridge, the current of 
travelling from the interiour country to the Capital has exten- 
sively passed through this town. Under the influence of specu- 
lation, a village has been raised up at the Western End of the 
bridge, called Cambridge Port. Here, it was supposed, trade 
might be made to flourish, and mechanical business be extensively 
done. It is doubtful whether the golden expectations, cherished 
by the proprietors of the ground, will be speedily realized. The 
neighborhood of the capital, and the superiour facilities which 
it furnishes for commercial enterprise, will probably be a lasting 

hindrance to all considerable mercantile efforts, on this spot. 

<i 


And Lowell wrote : 



(i) See letter in An Account of Some of the Bridges over Charles 
River, by Isaac Livermore (1858). 



CAMBRIDGE IN 1817. 327 

Cambridge has long had its Port, but the greater part of its 
maritime trade was, thirty years ago, intrusted to a single Argo, 
the sloop Harvard, which belonged to the College and made 
annual voyages to that vague Orient known as Down East, to 
bring back the wood that in those days gave to winter life at 
Harvard, a crackle and cheerfulness, for the loss of which the 
greater warmth of anthracite hardly compensates. . . . The 
greater part of what is now Cambridgeport was then a "huckle- 
berry pasture." The chief feature of the place was its inns of 
which there were five with vast barns and courtyards. . . . 
There were, besides the taverns, some huge square stores where 
groceries were sold, some houses by whom or why inhabited 
was to us boys a problem, and, on the edge of the marsh, a 
currier's shop. . . . The marshes also had been bought, 
canals were dug, ample for the commerce of both Indies ; and 
four or five rows of brick houses were built to meet the first 
wants of the wading settlers who were expected to rush in 
whence ? 

Such was the Cambridge of early Law School days(i). 
Of Harvard College a quaint general description is given in 
the Massachusetts Magazine for June, 1790: 

The seat of this University is a dry, healthy plain, four miles 
westward of Boston. It enjoys a fine air and commands an 
agreeable prospect. It has a spacious area in which the 
students divert themselves in their hours of relaxation with 
various manly and athletic exercises. They have four vacations 
in the year which altogether take up three months. The other 
nine are divided into four terms during which their absence is 
not permitted without special cause and express license from 
their governor. All possible care is taken of their morals as 
well as of their studies ; and they have every generous induce- 
ment to be diligent and improve it There is an impartial execu- 
meeting of the Overseers May 3, 1814, as follows: 

For years, it had been the custom for the Board of Overseers 
to appoint a Committee "to visit the University and inquire into 
the state of it and consider what may be done to increase its 
usefulness and respectability." Such a Committee consisting of 
Hon. Benjamin Pickman, Jr., Hon. William Prescott, Rev. W. 
W. Eliot, Rev. Mr. Walley and Rev. Mr. Lowell, reported at a 
meetieng of the Overseers May 3, 1814, as follows: 



(i) In the preparation of this chapter the author has been much assisted 
by the admirable Historic Guide to Cambridge, issued by the Hannah A. 
Winthrop Chapter of the Daughters of the American Revolution. 



328 HARVARD LAW SCHOOL. 

That the number of undergraduates is about 29O,(i) that 
large as the number is, no serious disturbances have taken place 
since the last report on the subject : On the contrary, that the de- 
portment of the scholars has been quite as correct and their atten- 
tion to their studies as great if not greater than usual; that the 
performances of the young gentlemen who had parts alotted 
to them at the late exhibition did honor to the college and must 
have been highly gratifying to their friends who attended it. ... 

The Professor of Rhetorick complained of the highly indecor- 
ous and injurious habit of expressing approbation at the pub- 
lick declamations by clapping their hands and sometimes stamp- 
ing their feet also of the exercises of the college military com- 
pany in the vicinity of his dwelling house. . . . The Pro- 
fessor of Mathematics and the Tutors in Geography & Natural 
Philosophy observed that their exercises had been better attended 
to than usual. The adjunct Professor of Chemistry desired a 
complete chemical apparatus. . . . 

The committee have only to express their full belief that the 
college was never in a more flourishing state than it is at pres- 
ent, whether regard be had to the respectability of its Instruc- 
tors, to the number and character of the students, or the many 
and great advantages placed in their hands. ( i ) 

The well known lawyer William Tudor, in his Letters on the 
Eastern States, written in 1820, gives the following suggestive 
account of the College : 

The number of students is commonly about 250. The resi- 
dent graduates have increased of late years, and are now 50 or 
60. The expense of an education at this seminary, for lodg- 
ing and instruction, is about one thousand dollars for the whole 
term of four years. The private expenses will be according to 
the discretion of the parent or guardian. There are several little 
aids given to poor scholars, to assist them in their necessary 
disbursements. 

There are some improvements to be made, which will tend to 



(i) In 1819, the number of Undergraduates was 272; Medical students, 
58 ; Divinity School students, 30 ; Resident Graduates, 12. 

The first annual catalogue of Harvard College issued in book or octavo 
form with 16 pages was in 1819. Prior to that, annual catalogues had been 
issued on broadsides. The first printed annual catalogue was that of 
October, 1803. In 1825, the first annual catalogue in duodecimo form was 
issued. Prior to 1803, triennial catalogues containing lists of graduates 
had been issued from a very early date, the first known printed one being 
in 1674. The first printed triennial catalogue in book of octavo form 
was in 1776. 

See Triennial and Annual Catalogues of Harvard University, by J. L. 
Sibley, Mass. Hist. Soc. Proc. Vol. VIII. 

(i) See Records of the Board of Overseers, in the Harvard College 
Archives. 



CAMBRIDGE IN 1817. 329 

raise the character and enlarge the utility of this establishment 
. . . One of these is to multiply the number of resi- 
dent graduates. This will enlarge the society, and excite 
sympathy and emulation among young men whose minds are 
matured, and who can attend the lectures and pursue the par- 
ticular studies they prefer, without the restrictions necessarily 
imposed on undergraduates. The standard of education will 
become higher, if the three years between the two degrees are 
devoted to a course of liberal study, to accomplishing the mind 
with general knowledge, before it is exclusively given up to one 
particular profession. The students in divinity and law, as 
well as all young men whose fortune prevents the necessity of 
their choosing a profession, would be greatly benefited by a 
studious residence here of two or three years. The students 
in medicine are more desirous of being in a large town, as their 
studies are so closely connected with practice. The greatest 
number of resident graduates at present are divinity students ; 
the law school is of recent foundation ; but it will add very much 
to the character of young men, if they pass two or three years 
at Cambridge in the study of polite literature, philosophy, and 
the elementary parts of law, before they plunge into the narrow 
details of an attorney's practice. 

Another improvement would be, a strict examination of the 
students, before receiving their degrees, and making honorary 
distinctions among them, according to their merits, as is done 
in the English universities.(i) 

It will be noted that in the official announcement of the found- 
ing of Law School, in 1817, much stress was laid upon the ad- 
vantage to be enjoyed by law students, through the privilege 
extended to them of attending the lectures of the College pro- 



(i) So far as its methods of instruction were concerned, the College 
was decidedly retrograde. They are best described in a letter from George 
Ticknor to President Hill, Feb. 4, 1863 : 

"When I was a teacher from 1819 to 1821, the College was in a low state. 
The classes were not divided into sections and no class received a lesson 
above half an hour long. Lectures were very few, and, except Prof. 
Farrar's, purely formal. From 1821 to 1825. some improvements were 
introduced. The classes were divided the recitations were lengthened, 
and free lecturing was begun. This imperfect state of things before 1825, 
you will find tenderly explained and a good deal smoothed over in the 
pamphlet entitled Remarks on Changes, etc., pp. 3-11. The improvements 
that it was then thought might be ventured, but by no means all that had 
been suggested or were deemed advisable you will find set forth at pp. 
32-46. These improvements, however, though they were carried out with- 
out difficulty in the Department of Modern Languages (Ticknor's own 
department) were opposed by the other teachers, and failed; and in con- 
sequence of which, seeing no hope of changing the College into an open 
University I resigned in the winter of 1834-5." 

See Harv. Coll. Papers, 2d Series, Vol. XXX. 



330 HARVARD LAW SCHOOL. 

fessors. And it cannot be doubted that this privilege formed a 
considerable inducement and attraction to those who joined the 
School. In fact, as will be seen in later chapters, many law 
students have testified to the great and enjoyable extent to which 
they availed themselves of this opportunity of combining a legal 
education with a liberal education in other subjects. 

Of the Professors of the College at this time, it has been 
said that they formed "a group of men unequalled in America 
in varied cultivation and the literary spirit." 

John Quincy Adams had been appointed Boylston Professor 
of Rhetoric and Oratory, in 1806, a distinctly advanced step 
in intellectual training, of which his two volumes of lectures still 
give proof. He was succeeded, in 1809, by Joseph McKean, 
whose place in turn was taken, in 1819, by Edward T. Channing, 
of whom it has been said "no American professor ever exercised 
so prolonged and unquestionable a literary influence or trained 
so many distinguished authors." 

Levi Hedge had been appointed Professor of Logic and Meta- 
physics, in 1810. Rev. Henry Ware had been Hollis Professor 
of Divinity, since 1805; Sidney Willard, Hancock Professor of 
Hebrew and Oriental languages, since 1807; Levi Frisbie, Pro- 
fessor of Latin, since 1811; Edward Everett, Eliot Professor 
of Greek Literature, since 1815 ; John Farrar, Professor of Math- 
ematics and Natural Philosophy, since 1807; John S. Popkin, 
Professor of Greek, since 1815; William D. Peck, Professor of 
Natural History, since 1805. In 1816, George Ticknor became 
Smith Professor of French and Spanish languages. In 1816, 
Jacob Bigelow became Rum ford Professor on the Application 
of Science to the Useful Arts, and John Gorham became Erv- 
ing Professor of Chemistry and Materia Medica. In 1817, Jared 
Sparks was Tutor of History. ( I ) 

The College Treasurer was Hon. John Davis ; the College 
Librarian, Andrews Norton ; the College Steward, Caleb Gan- 
nett. 

No less important in his influence on the students under- 
graduates, and students of the professional schools was the 
President of the College. 



(j) In 1825, Charles Folsom became Instructor in Italian. In 1822, 
George Bancroft became Tutor in Greek. In 1825, Charles Pollen 
became Instructor in German; and in 1826, Pietro Bachi, Instructor in 
Italian, Spanish and Portugese. Francis Sales had been Instructor in 
French and Spanish, since 1816. 



CAMBRIDGE IN 1817. 331 

In 1810, Rev. John Thornton Kirklancl, for sixteen years pastor 
of the New South Church in Boston, had been inaugurated Pres- 
ident of Harvard College. Commanding as he did the support, 
confidence and enthusiasm of the most intellectual, cultivated, 
public spirited, and wealthy men of Boston, he had raised the 
College to the rank of a true University. 

Of his personal characteristics, James Russell Lowell gives 
a vivid description : 

There was in the soft and rounded (I almost said melting) 
outlines of his face which reminded me of Chaucer He was an 
anachronism, fitter to have been an Abbot of Fountains or Bishop 
Golias, courtier and priest, humorist, lord spiritual all in one, 
than for the mastership of a provincial college, which combined 
with its purely scholastic functions, those of accountant and 
chief of police. For keeping books he was incompetent ( unless 
it were those he borrowed) and the only discipline he exercised 
was by the unobtrusive pressure of a gentlemanliness, which 
rendered insubordination to him impossible. 

Possibly his sense of discipline was a trifle lax, as Lowell 
wrote : 

Under him flourished the Harvard Washington Corps, whose 
gyrating banner on the evening of training days was an accurate 
dynanometer of Williard's punch or Porter's flip. (i) Under 
him the Med Facs took their equal place among the learned 
societies of Europe, numbering among their grateful honorary 
members, Alexander, Emperor of all the Russias. Under him 
the College fire engine was vigilant and active in suppressing 
any tendency to spontaneous combustion among the freshmen, 
or rushed wildly to imaginary conflagrations, generally in a di- 
rection where punch was to be had. 

He knew human nature, however, and above all, student na- 
ture. 

To the Harvard Washington Corps which applied for leave 
to go into Boston to a collation offered to them, he replied, "Cer- 
tainly, young gentlemen, but have you engaged anyone to bring 
home your muskets" (the College being responsible for the 
weapons belonging to the State). Again, when a student armed 
with a physician's certificate asked for leave of absence, Presi- 

(i) The Harvard Washington Corps had been organized in 1811, 
George Thacher of the class of 1812 being its first captain. See for an 
interesting account of this corps A Collection of College Words and 
Customs, by Benjamin H. Hall (1851); also see The Harvard Book. 



332 HARVARD LAW SCHOOL. 

dent Kirkland granted it, but added, "By the way, Mr. , 

persons interested in the relation which exists between states of 
the atmosphere and health, have noticed a curious fact in regard 
to the climate of Cambridge, especially within the College limits 
the very small number of deaths in proportion to the cases of 
dangerous illness." 

And Dr. Peabody wrote: 

Probably no man ever held office in a literary institution with 
so entirely unanimous respect, admiration and love on the part 
of his pupils. He knew them all; and with few exceptions he 
knew all about them and about their parents . . . .He examined the 
successive classes on their admission, in Virgil's Georgics ; but 
his scrutiny was directed much more to the countenance, the 
family traits and the indications of character, than to the token 
of scholarship; and a face thus seen was never forgotten; so 
that he always addressed students by name. . . . 

With all his kindness he had a marvellously quick and sharp 
eye for trickery and falsity. . . . His personal presence, always dig- 
nified and graceful, became on important occasions absolutely 
august and majestic. No one that witnessed it could ever for- 
get his reception of Lafayette in front of University Hall and 
his presentation of the students to the illustrious guest. 

Such was the President, under whom the Law School was 
founded. 



CHAPTER XVII. 
THE FIRST DECADE. 

So far as is known the Law School started with one student 
Charles Moody Dustin ; and the number entering during the 
first year was six. 

The principal instruction was of course given by Professor 
Stearns, although the fifteen lectures of Judge Parker as Royall 
Professor were considered a branch of the Law Department and 
were attended by the law students, during May and June in the 
Third Term, when they were given three or four times a week, 
at ten o'clock in the morning. ( I ) 

No record is extant showing the exact course of study in the 
early years of the School ; but it probably followed along the 
same general lines as that described in the report made by Pro- 
fessor Stearns to the Board of Overseers, in 1825: 

A course of study has been drawn up with much care, under 
the advice of the judges of the Supreme Court and other dis- 
tinguished jurists, and with reference to a term of 3 years 
within which period it can be established. . . . 

In the first place a reading of Blackstone, more or less par- 
ticular, of the whole work. This practise has been found by 
experience to be highly useful. It aids the student in fixing his 
attention, enables him more readily to acquaintance with the 
technical terms and language of the law, and at the same time 
to obtain a more distinct view of that admirable outline of the 
science. . . . For those gentlemen who do not pursue the 
study of the law as a Profession, the plan of instruction is varied 
by substituting for what relates to the practice, a more extended 
course of reading on the Civil Law, the Law of Nations, Con- 
stitutional Law and Political Economy. 

(i) See letter of Judge Parker to President Kirkland of May 9, 1818, 
stating that he had heretofore occupied 5 days in the week for lectures, 
and "calculating upon the same course I have entered into official engage- 
ments which required my attendance as early as the 27th June ; of course 
if I should be restricted to 3 days in the week after the 6th of June, I 
shall not have time to finish. It so happens that the doctor (Bigelow) 
wishes a dispensation for a week or two in the early part of June and 
thinks it will be convenient that I should have his days during that time. 

If this arrangement cannot be made I must beg to be allowed to begin 
on Monday the 22nd of this month." 

See Harvard College Archives, Harvard College Papers, Vol. VIII. 



334 HARVARD LAW SCHOOL. 

The first description of the method of instruction is contained 
in Professor Stearns' report to the Overseers, Jan. 9, 1826: 

The experience of eight years since the Law School was estab- 
lished has led to several considerable improvements upon its 
original plan; and the utility of the present system of instruc- 
tion seems to be fully evinced by the industry, limitation, and 
rapid improvement of the student. 

The regular exercises of the School are the following, viz. : 

1. Recitations and Examinations in several of the most im- 
portant text books, such as Blackstone's Commentaries Cruise on 
Real Property, Sounders on Uses, Fearnc on Remainders, etc. 

In these exercises the points of difference between the law of 
England and of our own country are carefully distinguished 
and the grounds and occasions of the difference are fully ex- 
plained to the students. 

2. Written lectures embracing a general course of legal in- 
struction, in which those parts of our system of jurisprudence 
in which we do not adopt the law of England are particularly 
noticed, and the grounds of our departure from it are explained 
and illustrated by the decisions and practice of our own courts. 

3. A Moot Court in which questions are regularly argued 
(often at considerable length) before the Professor, who pro- 
nounces an opinion. In these fictitious actions the pleadings, 
bills of exceptions, demurrers to evidence, special verdicts and 
motions in arrest of judgment or for a new trial are drawn up in 
form by the students. During the argument those students who 
are not of counsel are employed in taking minutes, with a view 
to the acquisition of facility and accuracy preparatory to prac- 
tice. The cases to be argued are, of course, adapted to the pro- 
gress of the respective students in their professional studies. 
But they are strongly urged to engage in them very soon after 
their commencement ; it having been found by experience that 
no other exercise is so powerful an excitement to industry and 
emulation or so strongly interests the students in their profes- 
sional pursuits. 

4. Debating Clubs including all the members of the Law 
School in which some question (generally in moral phil- 
osophy, political economy, or civil polity) which admits an ex- 
tended and free discussion, is debated once a week with a view 
to improvement in extempore elocution. 

5. Written dissertations by the student upon some title or 
branch of the law or the history of some department of legal 
or political science. 

Most of the students at this time, as appears from the First 
Record Book of the Law School (1817-1840), had had nearly 
two years study in a law office prior to entering the School, and 



THE FIRST DECADE. 335 

were thus supposed to be grounded on the technical details of 
practice. 

In the academic year 1818-19, eight students entered the 
School, the most prominent of whom was Caleb Gushing of 
Newburyport, Mass., (later judge of the Massachusetts Su- 
preme Court and Attorney General of the United States under 
President Peirce). 

THE DARTMOUTH COLLEGE CASE. 

These first two years of the Law School were years of great 
anxiety to all educational institutions ; for during them, the 
great case of Trustees of Dartmouth College r. Woodward was 
argued in New Hampshire, and on appeal in the United States 
Supreme Court. The immediate question involved was the right 
of the State Legislature to amend the charter of Dartmouth 
College without the assent of its governing officials. The broad 
question involved was whether a legislative charter was a con- 
tract, which, under the Constitution of the United States, a State 
was forbidden to impair. 

Harvard College had a very lively and serious interest in the 
outcome of this case ; for the Legislature of Massachusetts, only 
five years before the founding of the Law School, had done 
exactly w r hat the Legislature of New Hampshire had attempted 
in the Dartmouth College case. The facts had been as follows: 

In 1806, the workings of the old Board of Overseers of Har- 
vard College having become inconvenient, Chief Justice The- 
ophilus Parsons (then a Fellow of the Corporation) framed an 
act which passed the Legislature, March 6, 1810, changing the 
constitution of the Board ; but Parsons had inserted a clause 
that the act should be subject to acceptance by the Corporation 
and the Board of Overseers. This acceptance was given. In 
1812, however, the Republicans being in office in Massachusetts, 
a new act was passed Feb. 29, 1812, without any such clause, tak- 
ing effect without the requirement of any such acceptance, repeal- 
ing the act of 1810 and re-establishing the old Board. The valid- 
ity of this act was at once denied, and two Boards of Over- 
seers organized. The old Board for various reasons however 
had thought best to submit after protest, and the question had 
been solved without litigation by another change in the State 
administration in 1814, when the Legislature repealed the Act 



336 HARVARD LAW SCHOOL. 

of 1812, and restored the provisions of the Act of 1810, calling 
for 30 elective Overseers, (15 laymen and 15 clergymen) and 
adding the members of the State Senate. 

Thus the legal status of Harvard College had never been set- 
tled by judicial decision at the time when this Dartmouth Col- 
lege case was instituted. The case was argued in the fall of 
1817, before the Superior Court of New Hampshire, at that time 
consisting of Chief Justice William Marchant Richardson, (a 
Harvard graduate of 1797, classmate of Professor Asahel 
Stearns, and Horace Binney ) and of Associate Judges Samuel Bell 
and Levi Woodbury (both Dartmouth graduates). The counsel 
were Jeremiah Mason, Jeremiah Smith, Daniel Webster, and 
Timothy Farrar for the Trustees; and Ichabod Bartlett and 
George Sullivan for the defendant. 

On Nov. 6, 1817, the Court, after brilliantly able arguments, 
decided the case against the contention of the old Trustees. 

Arrangements were at once made for an appeal to Washing- 
ton ; and Daniel W 7 ebster took up a heavy collection among Bos- 
ton merchants and others interested in the cause of education. 
President Francis Brown of Dartmouth wrote to President 
Kirkland of Harvard, Nov. 15, 1817(1): 

The suit instituted by the charter Trustees of this College 
against Judge Woodward, their late Secretary and Treasurer, 
and which was designed to try the validity of certain acts of 
the Legislature of N. H. virtually revoking the charter issued 
in a decision by our Sup. Court unfavorable to the Trustees. In 
this case a writ of error lies to the Sup. Court of the LTnited 
States, and to that court they have already taken measures to 
transfer the action. 

The prosecution of it to a final decision at Washington will of 
course require a considerable expense. This expense from our 
limited means we are unable to meet without calling on the 
benevolent and wealthy for pecuniary aid. 

Our friends in N. H. have already taxed themselves some- 
what severely for paying the salaries of officers and for other 
purposes during the continuance of the struggle. 

In this state of things we have thought it right to make an 
appeal by private communication to the friends of literature and 
religion abroad. Our cause, we think, has now become substan- 
tially the cause of every literary establishment in the country; 
for it is to be decided by the highest of our judicial tribunals 
whether charter rights are to be held sacred or whether they may 

(i) See letter, (hitherto unpublished) in Harv. Coll. Papers, Vol. VIII. 



THE FIRST DECADE. 337 

be infringed at pleasure, accordingly as legislative caprice, or 
party violence shall dictate. And we believe that the friends of 
other colleges will feel that they shall be contributing to the gen- 
eral interests of religion and learning by affording us help in 
the present exigency. It is this belief which encourages me now 
to address you and to request that you will employ what influence 
you may think proper with the opulent in Boston and its vicinity 
to aid in procuring funds for prosecuting the cause in the ablest 
manner through the Sup. Court of U. S. 

We expect Mr. Webster to take charge of the action and should 
feel perfectly safe to entrust it wholly to his management. But 
possibly he may request an associate; or not improbably it may 
be thought expedient by our friends abroad, that another able 
lawyer should join him. In this case we should apply to some 
southern gentleman, perhaps Mr. L. Martin of Baltimore. 

I have written to no other gentleman connected with Harvard 
except Judge White of Salem. 

It is a curious fact that no history, so far as is known, has 
ever mentioned the intention to secure the services of Luther 
Martin in the case, as referred to in the above letter. Martin 
however was not employed ; and Webster retained Joseph Hop- 
kinson of Pennsylvania ; while William Wirt of Maryland and 
John Holmes of Maine appeared for Woodward. On March 
10-12, 1818, the case was argued before the United States 
Supreme Court. The counsel for the Trustees however so far 
over-matched their opponents that the argument was regarded as 
a legal fiasco for the appellees ; and with a view to re-argu- 
ment they sought to bring into the case the leader of the Ameri- 
can Bar William Pinkney as the only man who could meet 
Webster on anything like equal ground. 

After the argument, the judges being apparently in hopeless 
disagreement, the case was continued for a year to the Feb- 
ruary term of 1819. Meanwhile the parties interested set actively 
to work to influence public sentiment. Copies of Webster's 
argument were sent broadcast throughout New England, and by 
Webster himself to Judge Story for the other judges(i). The 



(i) See Webster to Story, Sept. 9, 1818. 

"I send you 5 copies of our argument. If you send one to each of 
such of the judges as you think proper, you will of course do it in the 
manner least likely to lead to a feeling that any indecorum has been com- 
mitted by the plaintiff. The truth is the N. H. opinion is able, ingenious 
and plausible. It has been widely circulated and something was necessary 
to exhibit the other side of the question." 

Webster's Correspondence, Vol. I. 

22 



338 HARVARD LAW SCHOOL. 

extent to which the attempt to influence the Court was pushed 
a proceeding of somewhat doubtful character, to the eyes of 
lawyers of today may be seen from the following letter writ- 
ten by Chief Justice Isaac Parker, then Royall Professor of Law, 
to Daniel Webster, April 28, 1818: 

The effect produced upon my mind by the argument you were 
good enough to send me is such as to induce me most earnestly 
to wish that it may not only be printed but published and exten- 
sively circulated. Public sentiment has a great deal to do in 
affairs of this sort, and it ought to be well founded. That 
sentiment may even reach and affect a court; at least if there 
be any members who wish to do right, but are a little afraid, it 
will be a great help to know that all the world expects they will 
do right. Besides, there is a natural leaning in favor of legisla- 
tive power, for it is the power of the people, when constitution- 
ally exercised ; but the people ought to be made to know that in 
certain cases their rights are above the reach of the Legislature, 
and thus popularity may be given to a denial of legislative power. 

. . . It is of importance to enlist all enlightened men on 
your side of the question, not merely on account of Dart- 
mouth College. Every institution in the country is liable to the 
same attack and must be defended on the same principles. . 

. . I think also that every judge of the Supreme Court of 
United States ought to have a copy of this argument. 

The decision in the case was rendered by the Supreme Court 
Feb. 2, 1819 an opinion in favor of the College, described by 
Joseph Hopkinson, one of the counsel, as based "upon principles 
broad and deep, and which secure corporations of this description 
from legisislative despotism and party violence for the future." 

THE FIRST LAW DEGREE. 

In the first annual Catalogue of Harvard University, issued in 
October, 1819, appear the names of eleven law students, room- 
ing in 2 College House, 3 College House and at Prof. Willard's, 
Mrs. Oilman's, Mr. Read's and Mrs. Porter's. 

Of these students three attained some degree of distinction 
Benjamin F. Hallett, whose name became widely known in the 
iSso's, because of his connection as United States District 
Attorney with the Fugitive Slave Cases in Boston ; Joseph Will- 
ard ; and Samuel E. Sewall, noted later as a prominent abolition- 
ist lawyer. 

It is interesting to note that the students of the first ten years 



THE FIRST DECADE. 339 

of the Law School were obliged to undergo a written examina- 
tion in order to qualify for the degree although when Pro- 
fessor Langdell introduced written examinations for a degree in 
1871, none had been given for forty years previously. 

As early as November 16, 1819, the matter of degrees had 
received the attention of the Corporation, who voted: 

that Mr. Lowell, Judge Jackson and Judge Story be a Com- 
mittee to examine in such way as they may think most suitable, 
the candidates for the Degree of Bachelor of Laws at the next 
Commencement and report upon their qualifications to this Board. 

On August 29, 1820, the Corporation accepted a report of John 
Lowell, Chairman of a Committee appointed June 12, 1820, to 
examine candidates, as follows: 

At a meeting of the Faculty of Law at the College Aug. 28, 
1820, the board proceeded to the examination of the candidates 
for the degree of Bachelor of Laws; and the following gentle- 
men having given satisfactory evidence of their having complied 
with the statutes on this subject and having read Dissertations 
on questions previously proposed to them by the Board, in which 
they evinced their diligence, learning and accuracy, it was unan- 
imously agreed to recommend them to the Rev. Overseers and 
Corporation as duly qualified. 

SUBJECTS ASSIGNED FOR THE DISSERTATIONS. 

I The Rules of Descent and Distribution of Real and Per 
sonal Property by the Civil Law, the Law of England and the 
Law of Massachusetts. 

2 The several injuries to which the Heir is liable in relation 
to his right of succession to Real Property, and the several reme- 
dies by Entry or Action which are furnished by the Laws of 
England and of Massachusetts. 

This report was accompanied by the certificate of Asahel 
Stearns, University Professor of Law, as follows(i) : 

I certify that Messrs. Charles F. Gore, Wyllis Lyman, John 
W. Porter, Samuel Edmund Sewall, William R. P. Washburn and 
Joseph Willard, all of whom are graduates have been members of 
the University Law School one year and a half or more, during 
all which time each of them has pursued his legal studies with 
diligence and success. 



(r) See Harv. Coll. Papers, Vol. IX. 



340 HARVARD LAW SCHOOL. 

I further certify that each has produced to me satisfactory 
evidence of having completed the period of his noviciate as 
required by the statutes of the University to entitle them to be 
candidates for the degree of Bachelor of Laws. Messrs. Proc- 
tor, Washburn and Willard have been duly admitted to practice 
more than six months. 

Thereupon the Corporation voted "that the degree of LL.B. 
be conferred on each of the said candidates" ; and accordingly on 
Commencement Day, August 30, 1820, the following gentlemen, 
none of whom were Harvard College graduates, and three of 
whom had already been admitted to practice in the courts, became 
the first Harvard Bachelors of Law, and received the first Har- 
vard degrees entitling them to write LL.B. after their names 
Charles E. Gore, a Dartmouth graduate; and five Yale gradu- 
ates Wyllys Lyman, John W. Proctor, Samuel E. Sewall, 
William R. R. Washburn, and Joseph Willard. 

In the year 1820-21, the Law School after three years of 
existence, appeared to the Corporation to have justified itself; 
and it seemed wise to enlarge its teaching force. The eyes of 
the Corporation naturally turned to the Massachusetts lawyer, 
who, excepting Webster, had the greatest national reputation as 
a jurist. Through his opinion in the great case of Dartmouth 
College v. Woodward, which had been decided in the Supreme 
Court at Washington only five months previously, and through 
his decisions in the prize, admiralty and patent cases in the 
Circuit Court, Judge Story's legal fame had been steadily grow- 
ing brighter. In 1818, he had become connected with the College, 
through his election as an Overseer. Accordingly, the Corpora- 
tion, on August 10, 1820, requested the President and Mr. 
Lowell "to consider the expediency of adding another Professor 
to the Law Faculty and consulting with the present Professors." 

The project met with hearty co-operation from Professors 
Stearns and Parker; and on Commencement Day in 1820, the 
Corporation voted to ask the President and Mr. Lowell : 

to communicate with Justice Story respecting the office of a 
Professor of maritime, commercial and publick law, it having 
appeared to the Corporation that such a professorship would be 
an important and useful addition to the Law School and the 
University. They have thought that it might consist with the 
views and disposition of Judge Story to occupy such a chair, or, 
at least, that he might think a proposal of this nature worthy of 



THE FIRST DECADE. 341 

his attention and consideration ; not that it would be necessary 
to confine his lectures to the branches mentioned, but convenient 
to have them constitute the designation of the professorship and 
its principal objects. 

Sensible of the benefits and reputation which would accrue to 
the University and the Law School from his connexion with the 
Seminary in this department, the Corporation are in hopes that 
he may regard the subject in a favorable light. 

Judge Story considered the offer carefully; but owing to the 
importance of his work on the Supreme Bench, he felt that he 
could not combine the two positions, and he therefore declined. 

In 1820-21, according to the College Catalogue, the number 
of law students had increased to thirteen, two of whom are 
especially to be noted; one, Emory Washburn, later Governor 
of Massachusetts, and Professor in the Law School from 1856 
to 1876; the other, Rufus Choate. While at Dartmouth Col- 
lege, Choate had been advised by his brother-in-law Dr. Thomas 
Sewall of Washington to enter Mr. Webster's office. 

I am aware, Rufus, that you have too much independence to 
be greatly influenced in your future course by the advice of any 
one, yet you have, I am persuaded, too much candor to be offended 
if I tell you what my feelings and opinions are on this subject, 
a subject deeply interesting to me as well as to your other 
friends. ... I doubt whether there is any place where you 
would pursue your studies to greater advantage than at Wash- 
ington. . . . Taking these and many other things into view, 
I must advise that you commence your course with Webster. 
Him you will find a different man from what you can have 
an idea of without a more intimate acquaintance, a friend, a com- 
panion, and equal. I am fully satisfied that you will find his 
office a better place to become an active lawyer, politician, and 
man of usefulness, than at Cambridge. ( I ) 

But having decided to first take a course at the Harvard Law 
School, Choate entered in the summer of 1820, induced undoubt- 
edly by the superior advantages which the College could hold 
out. "I was accustomed to meet him more frequently than other 
persons of his standing in the library of the University," said 
Edward Everett who was then Professor of Greek Literature. (2) 

In 1821, however, Choate left Cambridge to enter the office of 



(1) Life of Rufus Choate, by Samuel G. Brown (1878). 

(2) Address on Death of Rufus Choate, at Faneuil Hall, July 22, 1859. 
by Edward Everett. 



342 HARVARD LAW SCHOOL. 

William Wirt, then Attorney General of the United States ; and 
as his biographer wrote: 

The year at Washington, although he did not see so much 
as he wished of Mr. Wirt, who was confined for a considerable 
portion of the time by indisposition, was not without considerable 
advantage. It enlarged his knowledge of public men and of 
affairs. He became familiar with the public administration. He 
spent some hours almost daily in the library of Congress. He 
began to comprehend still more fully the dignity of his chosen 
profession. He saw Marshall upon the bench, and heard Pinkney 
in the Senate, and in his last speech in court, and thenceforth 
became more than ever the admirer of the genius of those 
eminent men. Pinkney he thought the most consummate master 
of a manly and exuberant spoken English that he ever heard, 
and he always kept him in view as a sort of model advocate. 

This year (1820) was especially interesting to the law students 
because of the sitting of the Massachusetts Constitutional Con- 
vention, over which Chief Justice Isaac Parker was chosen to 
preside, and the roll of which read almost like a list of the 
Massachusetts Bar.(i) 

It was also the year in which Webster delivered his great ora- 
tion at Plymouth, on the two hundredth anniversary of the Land- 
ing of the Pilgrims, an oration, the effect of which on its hearers 
may be judged by the remark of John Adams, who was present 
at the trial of Warren Hastings and who had heard Pitt, Fox and 
Sheridan, and who wrote to Webster, after reading his Plymouth 
oration, "Mr. Burke is no longer entitled to the praise the most 
consummate orator of modern times. "(2) 

In April, 1821, a trial occurred in Boston which was of great 
interest to the lawyers of Massachusetts, and in the excitement 
over which, the undergraduates and law students of Harvard 
College shared. No better conception can be had of the influ- 
ence of the great lawyers of the day over the minds of men, 



(1) Among the noted lawyers of the period who were members were 
Joseph Story, Daniel Webster, Charles Jackson, William Prescott, Artemas 
Ward, John Davis, Josiah Quincy, Daniel Davis, William Sullivan, George 
Blake, Warren Dutton, Lemuel Shaw, Samuel Hubbard, Nathan Dane, 
Samuel S. Wilde, Leverett Saltonstall, Samuel P. P. Fay, Samuel Hoar, 
Luther Lawrence, Samuel Dana, Levi Lincoln, Joseph Lyman, George 
Bliss, Ephraim Williams, Richard Sullivan, James Richardson, and Perez 
Morton. 

(2) History of the United States, by James F. Rhodes, Vol. I. 



THE FIRST DECADE. 343 

than by the account given by an Harvard undergraduate of the 
Class of 1821 Josiah Quincy, Jr.(i): 

James Prescott, judge of the probate of wills, was impeached 
before the Senate of Massachusetts, sitting as a high court of 
judicature. The trial was conducted under forms similar to those 
used in the famous prosecution of Warren Hastings. . . . 
Daniel Webster, Samuel Hoar, William Prescott, Samuel Hub- 
bard, the flower of the Boston Bar, appeared in behalf of 
Prescott. (2) Articles of impeachment had been found by the 
House of Representatives, which adjourned to be present at 
the case. . . . When Webster was to make his final plea, the 
galleries were crowded with ladies, the floor was packed by 
such fragment of the crowd as could again admission, and it 
might almost be said that the pulse of the community stopped, 
from the excitement of the moment. 

By some extraordinary good fortune, or perhaps favoritism, 
I found myself in one of the best seats in that thronged assembly. 
On either side of me were personages of no less importance 
than President Kirkland and Harrison Gray Otis. . . . 
Webster spoke for nearly four hours, and held the great assem- 
bly breathless under his spell. ... It is, undoubtedly, to 
the credit of the independence of the court that Judge Prescott 
was not acquitted on all the counts of the indictment ; but to 
have heard the noble effort made in his behalf by Daniel Webster 
marked an epoch in the lives of those present. It gave me my 
first idea of the electric force that might be wielded by a master 
of human speech. 

On Commencement Day, August 24, 1821, Joseph Story 
was made an LL.D., together with Charles Jackson, Judge of the 
Massachusetts Supreme Court and Ambrose Spencer, the great 
Chief Justice of New York. No students received an LL.B. 

In the year 1821-22, the Catalogue shows thirteen law stu- 
dents the same number as in 1820-21. 

In the next year on Commencement Day, August 28, 1822, two 
law students received the degree of LL.B. in accordance with 
the usual certificate then given by the Law Professor as follows : 

I certify that Messrs. Oliver W. B. Peabody and Ira Barton 
have been members of the Law School of the University more 
than one year and a half during all of which time they pursued 
their studies with great assiduity and success and performed the 
regular literary exercises in the most satisfactory manner and I 

(1) Figures of the Past, by Josiah Quincy Jr. (1883). 

(2) The case for the prosecution was conducted by Lemuel Shaw 
(later Chief Justice) and Warren Button. 



344 HARVARD LAW SCHOOL. 

further certify that each of them has pursued his legal studies for 
the residue of the period of three years in the manner prescribed 
by the Rules of the Supreme Judicial Court of Massachusetts. 
They are both gentlemen of unexceptionable character. 

Asahel Stearns. (i) 

In this year, 1822, Daniel Webster became an Overseer of the 
College, and John Lowell, to whose interest the Law School 
owed so much, resigned from the Corporation. 

In 1822-23, there were ten law students, most of whom roomed 
in private houses and outside the College House or Law School 
building. 

On Commencement Day, August 27, 1823, two law students 
received an LL.B. in accordance with the certificate of the Law 
Professor; one of them (Andrew L. Emerson) being given his 
degree on the strength of a certificate to Stearns from Simon 
Greenleaf and Isaac Lyman, attorneys in Maine, that Emerson 
had studied with them one and a half years (less four weeks) 
since leaving the School in February, 1822. (i) 

This is interesting as an example of the manner in which 
degrees were conferred on men after they had severed all connec- 
tion with the School, and simply on the ground of completion of 
a three years' study of the law. 

In 1823-24, the number of law students fell to eight, most 
of them rooming in private houses, and two in the home of Pro- 
fessor Stearns on Kirkland Street. 

In August and September 1823, the law students were given 
the privilege of meeting the great Chancellor Kent, who, having 
just retired from the Bench, was making a round of visits in 
Boston, Cambridge and the vicinity. Of his visit and his attend- 
ance at the Phi Beta Kappa dinner, on the day after Commence- 
ment, August 28, 1823, a lively account is given in two letters 
from George Ticknor, then Professor of French and Spanish, 
and Belles Lettres at Harvard, the first written to S. A. Eliot : 



(i) One student apparently failed to be given a degree because of 
the insufficiency of the following certificate : 

"William Henry Roy certified as of Virginia pursued his legal studies 
with diligence and success. After he left the University I have under- 
stood that he pursued his studies one year with great assiduity at Williams- 
burg. But I have heard nothing from him for about 6 months past. . . . 
Mr. Roy's character during his residence at the University, was highly 
respectable and his deportment unexceptionable." 

See Harvard College Papers, Vol. X. 

(i) Harv. Coll. Papers, Vol. X. 



t 



THE FIRST DECADE. 345 

Among the strangers who have been here this season, by far 
the most desirable is Chancellor Kent, now superannuated by 
the Constitution of the State of New York, because he is above 
sixty years old, and yet, de facto, in the very flush and vigor of 
his extraordinary faculties. ( i ) He was received with a more 
cordial and flattering attention than I ever knew a stranger to be 
in Boston, and had not a moment of his time left unoccupied. 
He enjoyed it all extremely, and is of such transparent simplicity 
of character that he did not at all conceal the pleasure he received 
from the respect paid him during the ten days he was with us. 
What pleased him most, I suspect, was the Phi Beta dinner. All 
the old members attended it on his account, so that nearly a 
hundred sat down to table, among whom were Chief Justice 
Parker, Judge Davis, Judge Story, Mr. Prescott, Sen., Mr. 
Webster, etc. The whole was carried through, with extempo- 
raneous spirit, in the finest style, and nothing faltered, up to the 
last moment. 

The best toasts we ever had in this part of the country were 
given, on requisition from the chair, at an instant's warning, 
and the succession was uninterrupted. Judge Parker gave, "The 
happy climate of New York, where the moral sensibilities and 
intellectual energies are preserved long after constitutional decay 
has taken place;" and Judge Story gave, "The State of New 
York, where the law of the land has been so ably administered 
that it has become the land of the law ;" to which the Chancellor 
instantly replied, "The State of Massachusetts, the land of Story 
as well as of song;" and so it was kept up for three or four 
hours, not a soul leaving the table. At last the Chancellor rose, 
and the whole company rose with him, and clapped him as far 
as he could hear it, and then all quietly separated. It was the 

(i) The origin of the sixty year limit imposed on judicial tenure of 
office is amusingly described in Administration of Justice in New York, 
by Giulian C. Verplanck, Law Reporter, Vol. II (1839) : 

"We were plagued before the Revolution with one or two good-for- 
nothing old barristers sent out from England to be provided for who 
never were fit for judges and who of course grew stupider as they grew 
older. One judge, Horsmanden, who presided in our colonial court just 
before the revolution was of this cast : and our new constitution was 
framed by young lawyers (for such then were John Jay and Robert 
R. Livingston) who had groaned under his venerable dullness. This was the 
history of the adoption of the constitutional incapacity of our judges at 
the age of sixty." 

And in a Revietv of Kent's Commentaries, by George Bancroft in 
American Quarterly Rcvieiu, Vol. I (March 1827), it is stated that the 
New York law as to age "was adopted in consequence of disgust occasioned 
by one Daniel Horsmanden who under the royal government was Chief 
Justice of the Province of New York. He was, and it appears justly, too, 
a most unpopular judge, tenacious of his will and arbitrary in decisions. 
He lived to a very advanced age and the Revolution found him on the 
bench when he was in his dotage. To prevent a similar occurrence the 
provision was introduced into the first constitution of the new State," and 
again into the constitution of 1822. 



346 HARVARD LAW SCHOOL. 

finest literary festival I ever witnessed, and I never saw anybody 
who I thought would enjoy it more than the Chancellor did. 

I was with him a great deal while he was in Boston ; he 
dined with us the day before he left; and I really think he is not 
only one of the most powerful, but one of the most interesting 
men I ever saw. (i) 

The second, to Charles S. Daveis of Portland : 

Your very gay and happy letter of the 23rd of August-came 
in one morning just as the Chancellor was with me, and we 
were setting off for Nahant. I had the pleasure, too, that day 
of taking him to Salem, to Judge Story, and making them 
acquainted; after which we all came to the new hotel, and with 
Mr. Otis had a very merry time indeed. 

He is, in his conversation, extremely active, simple, entertain- 
ing, and I know not when we have had among us a man so much 
to my mind in all things. I dined with him five or six times, and 
he dined with us the last day, and a rare display of fine talk we 
had at table, between him, Mr. Prescott, Mr. Lowell, and Mr. 
Webster. . . . Everybody was delighted w r ith him. His 
whole visit among us was an unbroken triumph, which he enjoyed 
with the greatest openness. . . . 

I carried him to Quincy to see President Adams and Mr. J. 
Q. Adams, . . . and we met them afterwards at table at 
Mr. Quincy's. Mr. J. Q. Adams made a most extraordinary 
attack on the character of Chancellor Bacon, saying that his 
Essays give proof of a greater corruption of heart, of a more 
total wickedness, than any book he ever saw. Our New York 
Chancellor expressed the most simple and natural astonishment 
at this, and we got over the matter the next day, at dinner, by 
drinking to the "Memory of Chancellor Bacon, with all his 
faults," a toast which Mr. Prescott evidently gave with the 
greatest satisfaction. Mr. Quincy gave a beautiful toast at his 
own table, which I suspect was not the least pleasant to the 
Chancellor, among all the delicate and indirect compliments 
that were offered to him among us, and which was very appro- 
priate at a table where were Mr. J. Q. Adams, Mr. Prescott, etc. 

(i) See Letter to S. A. Eliot, Sept. 13, 1823, in Life and Letters of 
George Ticknor (1876). 

On the day after this dinner, Aug. 29, 1823, Kent wrote to Story, having 
heard of the news of the sudden death of Story's brother : "This melan- 
choly event has broken the enchantment of my visit to Boston. Your 
place as a companion cannot be supplied. The charm of your society, your 
frankness, your benevolence, your vivacity, and your matchless genius 
cannot be supplied. Be assured of my firm and unalterable esteem and 
reverence." See unpublished letter in Story Papers, Mass. Hist. Soc. Col- 
lection. 

This was certainly a remarkable tribute from the Senior to the Junior 
Judge. 



THE FIRST DECADE. 34? 

It was, "Nature, who repeals all political Constitutions by the 
great Constitution of mind". And Webster, on the same occa- 
sion, made a pleasant repartee in compliment to Mr. Quincy. 
Mr. Adams, being called on for a toast, said to Mr. Quincy, "I 
will give you, Sir, the good city of Boston". "That", said Mr. 
Webster, "we gave Mr. Quincy long ago, ourselves, with the 
greatest pleasure." 

Indeed, the Chancellor seemed to give an uncommon stir and 
brightness to men's faculties, while he was with us, ... 
there seemed to be a happy and healthy excitement of the intel- 
lectual powers and social feelings of all with whom he came in 
contact, that was the evident result of his rich talents and trans- 
parent simplicity of character, and which I have never known to 
be produced among us in the same degree by any other indi- 
vidual. ( i ) 

On Commencement Day, August 25, 1824, no degrees of 
LL.B. were conferred, but the day was made brilliant for all 
students of Harvard, by the presence of General Lafayette who 
had recently landed in the United States. His visit is thus 
described in the records of the Corporation : 

"By reason of the ceremonial for the Reception of General 
Lafayette, the exercises of the day were delayed beyond the 
ordinary time. On his arrival, escorted by a volunteer troop of 
horse accompanied by his Excellency the Governor, His Honor 
the Lieut. Governor, the Honorable Council, the Mayor and 
Municipality of Boston, the Sheriffs of Suffolk and Middlesex 
the Reverend and Honorable Board of Overseers, strangers of 
distinction and a large number of most respectable citizens, he 
was received at the Portico of University Hall by the Corpora- 
tion, the students being assembled in their classes on the college 
ground in front. 

He received a cordial welcome to ... this University 
in a short and appropriate address by the President of the Uni- 
versity to which he returned an affectionate, well adapted 
answer. After introducing him to the officers of the Institution 
and those citizens who had attended for that purpose, the pro- 
cession was formed to the meeting house." 

After the usual exercises and performances, honorary degrees 
of LL.D. were conferred on William Wirt, Josiah Quincy, 
and Daniel Webster. 



(i) See Letter to Charles S. Daveis, of Portland, Me., Sept. 19, 1833, 
in Life and Letters of George Ticknor. 



348 HARVARD LAW SCHOOL. 

It is interesting to note that, while Josiah Quincy received his 
degree of LL.D., his son, Josiah Quincy, Jr., delivered the Latin 
valedictory for the undergraduates ; and, he writes : 

To describe the enthusiasm that greeted the guest of the day 
is simply impossible . . . never was harmony so unbounded, 
so heartfelt, so spontaneous. It w r as as if one of the great heroes 
of history had been permitted to return to earth. . . . The 
first part of my performance consisted of mere phrases of rhet- 
orical compliment thrown out at creation in general. . . . 
But the inevitable allusion came at last. I had drifted among the 
heroes of the Revolution, and suddenly turned to the General 
with my 'In te quoque, Lafayette' and then what an uproar 
drowned the rest of the sentence! 'Why sir, do you know, the 
pit rose at me/ said Edmund Kean. The expression of the player 
is perhaps as good as any I can borrow. 

The degree of LL.D. conferred on Webster and Wirt were 
richly merited at this time ; for, in the preceding March, they 
had argued the great steamboat case Gibbons v. Ogdcn in the 
United States Supreme Court. (See Chapter XIX, infra). 

The year 1824-25 opened with an increase of law students to 
twelve in number; and in the spring of 1825, Professor Stearns 
earnestly tried to get the Corporation to erect a new building for 
the Law School, in place of the small, dingy, inconvenient rooms 
in College House No. 2 then occupied by it. The 
College Treasurer, Stephen Higginson, estimated that the 
expense of a building "to accommodate twenty law stu- 
dents with the same number of rooms, 16 feet each, together 
with a library of about 30 feet, to be used also for a lecture room 
and also an office for the professor, will cost $7500, built of brick 
and furnished plain with stone door casings and windows like 
Holworthy."(2) 

(i) Figures of the Past, by J. Quincy, Jr. (1883). 

(2), See letter of Stephen Higginson June 18, 1825. Harv. Coll. Papers, 
Vol. XL 

In a previous letter of May 14, 1825, Mr. Higginson had estimated the 
income then arising from the College property between the court house 
and the graveyard on the northwest side of Harvard Square as follows: 

Income Kidder House & shop $120 

Manning House & stables 180 

Lee shop 80 

Coll. House No. i J. Dana 120 

" 6 rooms for students 60 

" House No. 2, 6 rooms 150 

Janitor's House 35 

$745 



THE FIRST DECADE. 349 

And in July, 1825, Mr. Higginson wrote to the Corporation : 

In considering the subject of building on the College land 
near the Court House, the question naturally arises, whether 
any of the departments of the College can be better accommo- 
dated by building thereon. 

The law professor is very desirous that his students should 
be provided with rooms near to their library and lecture room. 
The rooms now used for the purposes of the law school in Coll. 
House No. 2 would answer the purpose for the shops of the 
mechanics who have requested to be admitted as tenants of the 
College, and there is room to accommodate all their families under 
the same roof. . . . The rooms for students would rent 
for $30. The building would be set back from road about 20 
ft. Professor Stearns is of opinion it would not be difficult to 
effect an arrangement with the town, which would admit of 
building nearer the Court House than 50 ft.(i) 

The Corporation decided to look into the matter ; and on 
August 16, 1825, the President having laid before the Board 
Professor Stearns' proposal, together with a plan and estimates, 
voted, that the President, Judge Charles Jackson, and William 
Prescott should be a committee to ascertain on what terms such 
a building could be built, and how the funds could be raised. 

At the same meeting the Corporation, in spite of its previous 
failure, in 1820, to persuade Judge Story to accept a Professor- 
ship, decided to broach the question again ; and the same com- 
mittee was requested to "take into consideration such measures 
as may be proper to be adopted for enlarging the means of 
instruction in the Law School." 

In this year 1825 occurred also the settlement of a controversy 
which had lasted for two years, and in which Joseph Story and 
John Lowell had taken active part in the Board of Overseers, 
and in which, incidentally, Professor Stearns was involved. 

In 1806, the Corporation of Harvard College was composed 
exclusively of Fellows non-resident in Cambridge; and succeed- 
To which may be added 3 rooms Coll. House No. 2 used for 

Law Library etc., and not charged $ 75 

Carpenter's shop and yard north 60 

Wood yard and shed 60 

Manning House may bring more rent 60 



$1000 
Deduct for repairs 200 



$800 
(i) See Harv. Coll. Papers, Vol. XI. 



350 HARVARD LAW SCHOOL. 

ing vacancies in the Corporation had been filled by the election 
of non-residents. Considerable feeling had arisen among the 
resident instructors which came to a head in 1823, when, upon 
the death of Judge John Phillips, a Memorial signed by six of 
the resident instructors was presented to the Corporation, ask- 
ing that the vacancy be not filled until they could have an oppor- 
tunity to be heard. On April 2, 1824, a Memorial was presented 
signed by eleven instructors claiming that, as a matter of charter 
right, residence was a qualification for Fellowship. ( i ) 

The Memorial was not acted upon by the Corporation ; but the 
Overseers referred it to a committee which reported on Jan. 6, 
1825, against the contention of the resident instructors. In the 
words of George Ticknor, then a professor in the College (2) : 

i 

It may be added that, as a legal question, few have ever been 
examined among us with more laborious care, or by persons bet- 
ter qualified to decide as to what is the law. In the Corporation 
at the time were Mr. W. Prescott, Mr. H. G. Otis, and Mr. J. 
Davis, District Judge of the United States. In the Board of 
Overseers, Mr. Justice Story of the Supreme Court of the United 
States delivered his opinion against the memorial in a long argu- 
ment. He was succeeded on the same side by Chief Justice 
Parker of the Supreme Court of Massachusetts, Mr. Justice Jack- 
son, Mr. F. C. Gray, and some other persons of distinguished 
talent. On the final question not a voice was raised in the Board 
or elsewhere, I believe, in favor of the memorial. The profession, 
in particular, seemed unanimous on all points ; and many years 
will probably elapse before any important question will be de- 
cided with such a great weight of legal talent and learning after 
so long, so patient and so interesting a discussion. 

In behalf of the instructors, the main argument was made 
by Edward Everett, Professor of Greek Literature and Andrews 
Norton, Professor of Sacred Literature. 



(1) The earlier memorial contained among the other names that of 
Asahel Stearns ; but it appears that he signed owing to a mistake as to its 
contents, according to a letter from him in the Harvard Archives. 

The Records of the Corporation of May 10, 1824, contain the following 
entry : 

"The President communicated a letter of Asahel Stearns University Pro- 
fessor of Law relating to his agency in regard to the memorial of the 
resident Instructors, etc." 

(2) Remarks on Changes Lately Proposed or Adopted in Harvard 
University, by George Ticknor (1829) ; Miscellaneous Writings, by Joseph 
Story, 1835; American Jurist, Vol. I, April 1829. 

And see for full account and collection of authorities History of Har- 
vard Medical School, by Dr. T. F. Harrington, Vol. II. 



THE FIRST DECADE. 351 

The debate lasted three days and the question was finally set- 
tled by a vote of the Corporation, "that it does not appear to 
the Board that the resident instructors in Harvard University 
have any exclusive right to be elected members of the Corpora- 
tion." Thereupon Judge Charles Jackson was elected a Fellow 
on Feb. 8, 1825. Opposition developed in the Overseers at the 
election of another lawyer, it being felt that there should be an- 
other clergyman on the Board. This opposition died down, how- 
ever, and after first non-concurring, the Overseers at a later meet- 
ing elected Jackson. This action was followed on June 2, 1825, by 
the unanimous election to the Corporation by both Corporation 
and Overseers of still another lawyer Joseph Story, in place 
of Harrison Gray Otis, who resigned. 

On Commencement Day, August 31, 1825, Professor Stearns 
was given the degree of LL. D. in distinguished company with 
Henry Clay, John Wickham of Virginia, and Judge Samuel 
Putnam of Massachusetts ; and the very large number of ten 
degrees of LL.B. were conferred. 

The College Catalogue for 1825-26 shows the names of ten 
law students (a later edition reporting thirteen) ; and contained 
for the first time the following announcement : 

Persons qualified by the rules of the courts in any of the 
United States to become students of law may be received in the 
Law School for a period of not less than one term. 

Of these students, the most prominent were Seth Ames, later 
a judge of the Massachusetts Supreme Court; Francis Hilliard, 
later author of many well known legal text books ; and Luther 
S. Cushing, later Reporter of the Massachusetts Supreme Court, 
and Instructor in the Law School. 

That the Harvard Law School was not securing many of the 
brilliant young men of the day is shown by the fact that two well 
known young Bostonians, who, it might be supposed, would have 
naturally gone into the School, received their legal instruction 
in the office of Daniel Webster. These two were Charles Francis 
Adams, and Robert C. Winthrop. Of the latter's study it is 
related that, Webster being then a United States Senator and 
being much in Washington : 

His local business was attended to by his junior partners. 
Even when at home he was generally too busy to give much at- 



352 HARVARD LAW SCHOOL. 

tention to his students, whose duties were to copy papers, look 
up cases and prepare briefs. . . . 

At very long intervals he discoursed a little on the great prin- 
ciples of jurisprudence and more often favored them with a 
passing insight into contemporary politics. (i) 

In 1825, Levi Lincoln, Judge of the Supreme Court of Massa- 
chusetts, and son of Jefferson's Attorney General Levi Lincoln, 
became Governor of Massachusetts. In the same year John 
Quincy Adams, one of the leaders of the Republican Bar of 
Massachusetts, was inaugurated as President ; and a noted New 
York lawyer, Governor DeWitt Clinton saw the completion of 
his great work in the opening of the Erie Canal. On June 17, 
1825, General Lafayette laid the cornerstone of Bunker Hill 
Monument; and Daniel Webster delivered his famous oration. (2) 

This year, 1825, had also been notable for an important up- 
heaval in the methods of administration of Harvard College 
a long step towards the transformation of the old College into 
a real University. 

A Committee of the Overseers (appointed in July, 1823), of 
which Joseph Story was chairman, had drafted an elaborate 
plan containing important changes in the system of instruction, 
government and discipline of the College, establishing separate 
departments, relieving the President of many of his ministerial 
duties, and providing for frequent examinations and for an in- 
crease of elective studies. Their report made on January 25, 
1825, had been concurred in by the Corporation on September 
28; and these "Statutes and Laws of the University in Cam- 
bridge, Massachusetts," as they were entitled, comprising 153 
separate laws or regulations, mark the beginning of the modern 
Harvard University. (3) The only Statutes referring to students 
in the professional Schools were as follows : 

No. 152. Graduates and Students in the Theological and Law 
Schools and matriculated Medical Students living in Cambridge 
are admitted to the Lectures and Library of the University. 

No. 153. If any Graduate or professional Student residing 
in Cambridge shall be chargeable with idleness, extravagance or 
any vice; or shall allow disorder within his room or fail to show 

(1) Memoir of Robert C. Winthrop, by Robert C. Winthrop, Jr. 

(2) For one of the best accounts of this by a contemporary, see Fig- 
ures of the Past, by Josiah Quincy, Jr., of the Class of 1821. 

(3) There had been previous printed editions or revisions of the Stat- 
utes and Laws in 1790, 1798, 1807 and 1814. 



THE FIRST DECADE. 353 

respect to the laws and governors of the University, and, after 
admonition by the President, shall not reform; all his privileges 
as a Resident Graduate shall be withdrawn. 

No. 149. Candidates for the . . . Degree of Bachelor of 
Laws shall join the public procession on Commencement Day. 

No. 144. Every Bachelor of Arts, having preserved a good 
character during the three years subsequent to his taking his 
degree, shall upon his complying with the requisitions herein- 
after stated be entitled to the degree of Master of Arts.(i) 

Among the changes brought about by these new Statutes had 
been a new requirement (Statute No. 60) that the heads of the 
newly constituted departments should make reports to the Presi- 
dent on the condition of their respective departments at the end 
of each of the three terms. (2) 

Beginning with 1825, therefore, detailed accounts of the ad- 
ministration of the Law School are in existence in the College 
Records, for nearly every term of each year, up to 1870. From 
these reports, it is possible to ascertain the number of students 
in the School during each term, while the College Catalogue 
gives the attendance only during the first or fall term. As a 
rule, it appears that the number of students fell off during the 
winter terms. 

Professor Stearns' second Report, Jan. 9, 1826, notes the pres- 
ence of 12 students, of whom 7 were from Massachusetts, 3 
from Virginia, I from New Hampshire, I from Louisiana; and, 
he continues : 

It is highly satisfactory to the undersigned to be able to state 
that the industry, emulation and regular deportment of the stu- 
dent since the commencement of the present academic year with 
a single exception has not been surpassed at any period since the 
establishment of the school. 



(1) The only requirements were the payment of $5.00 for the public 
dinner and other Commencement charges. 

(2) "The Professors in each department where there are more than 
one, shall constitute a board, at which the Senior Professor shall preside. 
They shall have charge of the Instruction, in their respective departments, 
see that it be conducted in an effectual manner, and recommend such In- 
structors as may be wanted, who shall receive the aid, countenance direc- 
tion and supervision of the Professors in the department. 

The Professors shall make .personal examination and critical inquiries in- 
to the conduct and attainments of the students in their respective depart- 
ments. 

Reports relating to each department with such observations and recom- 
mendations as to studies and discipline as may appear useful shall be made 
at the end of each term by the Boards respectively to the President to be 
laid before the Corporation and a similar report shall be made twice a 
year to be laid before the Overseers." 
83 



354 HARVARD LAW SCHOOL. 

There was, however, great difficulty in maintaining regular 
courses of instruction, or accurate classification of the students, 
at this time, because of the freedom with which entrance to the 
school was allowed at all times during term ; for a student 
could be admitted whenever he chose to come, and he picked up 
the courses just where he found them.(i) 

The method of instruction at this time was as follows : Pro- 
fessor Parker delivered 18 lectures to the law students and to 
members of the Senior class; Professor Stearns gave 38 written 
lectures, ( i ) held 67 reviews of one hour each, and gave examin- 
ations on the text books required to be studied, lasting two or 
three hours each. The students were required to write 30 dis- 
sertations. And there were 37 Moot Courts held, lasting from 
two to three hours each, and 36 exercises in disputation lasting 
from two to three hours each. (2) 

For purpose of weekly recitation and examination, the stu- 
dents were divided into two classes or divisions according to 
advancement in studies. And, says Stearns, Aug. 29, 1826, 
"there were a few individuals whose standing by reason of their 
having commenced their studies at different periods rendered it 
inexpedient, if not impracticable, to write them with either class." 

This irregularity in the time of beginning their studies had its 
influence on the part which the students could take in the moot 
court work; and in his report of April 2, 1828, Stearns notes 
that the number of Moot Courts was "much less than usual 
owing to the circumstances that 8 (of the n students) began 
the study of the law since the commencement of the present 
academic year" and hence "not being sufficiently advanced in 
their studies to take part in them." 

The examination consisted of from twenty to thirty questions 



(1) As an example of the confusion into which this threw the statis- 
tics of the School, it appears from the Catalogue of October, 1825, that 
there were then ten students in the School, Professor Stearns' Report for 
the first term shows 12, for the second term 10, and yet in his Report of 
August 29, 1826, for the whole year 1825-26, "No. first term 12, second 
term 14, third term 11, the whole number of individuals in the course of 
the year being 15 of whom 11 were graduates." 

(2) In 1826-1827, 39 lectures; 69 reviews and examination by classes; 
35 Moot Courts; 34 disputations; 29 dissertations (See Stearns' Report of 
September 24, 1827). 

In 1827-1828, 37 lectures; 67 examinations and reviews in class besides 
separate examinations to individuals; 25 Moot Courts exercises; 31 meet- 
ings for extempore discussion (See Stearns' Report, Sept. 1828.) 

In 1828-1829, 1st term ending Dec. 24, 1828 (See Stearns' Report) 15 
lectures; 46 examinations and reviews; 3 Moot Courts. 



THE FIRST DECADE. 355 

put to each student, on the subjects of the lectures and text books 
assigned to them. 

The course of study was as follows: 

In 1825-26, the beginners, or Second Class, were required to 
read the following elementary text-books Sullivan s Lectures, 
Blackstone's Commentaries, Wooddeson's Lectures, Cruise on Real 
Property, Sugden on Law of Vendors and Purchasers; in 1826- 
27, were added Littleton's Tenures, Coke on Littleton, Bur- 
lemaqui, Select titles on Personal Remedies and Pleading, from 
Bacon s Abridgment, Lawes on Pleading, Stephens on Pleading, 
and above all, the first volume of Kent's Commentaries which 
had just been published in 1826. (i) 

In 1827-28, the new book which Professor Stearns had just 
written, based on his law lectures, Stearns on Real Actions was 
added to the course. (2) 

For the more advanced students, or First Class, the scope of 
study, as given in the President's Annual Report for 1825-26 
was rather narrow : Law of Real Property Littleton's Tenures, 
Coke on Littleton, Sugden on Law of Vendors and Purchasers; 
Personal Relations and Rights Reeve on Domestic Relations, 
Select titles from Bacon's Abridgment, Toller on Executors and 
Administrators, Jones on Bailments, Comyn on Contracts; Courts 
of Jurisdiction, etc., Officers of Courts, Process and Autohrity, 
Personal Remedies Select titles from Bacon's Abridgment; 



(1) Stearns, in his Report of this year, said: "Some of the Second 
Class have read (preparatory to commencing the study of law), Hume's 
History, Robertson's Charles the Fifth, Mitford's Greece and part of Gib- 
bon's Roman Empire." 

(2) "In the Winter of 1824, during the session of the Court at Cam- 
bridge, and when the Bar were accustomed more than at present to spend 
their evenings together, and when their habits of social intercourse did much 
to soften the asperities which the practice of the law seems calculated to 
call forth and strengthen, Mr. Stearns was one evening lamenting that he 
had so little to do. It was then vacation in the University; he had but 
few actions in the court ; and his time seemed likely to hang heavy on his 
hands for several weeks. 'I will tell you what to do,' was the answer of 
Mr. Samuel Hoar, who was a very intimate friend, 'You shall write a 
work on real actions.' The advice was received with acclamation by all 
present; and Mr. Stearns immediately commenced the work, which he 
had more than half completed before the close of the vacation, and which 
was published in less than six months and passed to a second edition in 
1831. ... It was universally regarded as learned, accurate and useful; 
and, we may say, without fear of contradiction, that it supplied a desider- 
atum, the want of which, all in any way conversant with the law had ac- 
knowledged, and which students and the younger members of the Bar 
had especially felt." 

See Law Reporter, Vol. I (April 1839). 



356 HARVARD LAW SCHOOL. 

Pleadings and Practice Lawcs on Pleading, Stephens on Plead- 
ing, Chitty on Pleading Tidd's Practice. 

The next year 1826-27, a much broader line of work was 
taken up. The study of Equity was introduced with Barton's 
History of a Sidt in Equity, Blake on Chancery, Fonblanque 
on Equity, Mitford on Pleading, Newland on Contracts. Evi- 
dence was introduced with Phillips and Starkie on Evidence; 
Merchantile Law came in with Chitty on Bills; Bailey on Bills: 
Abbott on Shipping; and Marshall on Insurance. Newer books 
on pleading and realty law were used Selwyn on Nisi Prius; 
Stearns on Real Actions; Booth on Real Actions; Sounders on 
Uses; and Reeve on Domestic Relations, Toller on Laiv of Exec- 
utors, Jones on Bailments and Comyn on Contracts were dropped. 

In 1827-28, the courses remained without change. 

Combined with recitations from these text books were the 
lectures, containing "frequent references to reported cases and 
other text books for illustration and further satisfaction;" and 
the Professor reported, May 20, 1826, that these exercises were 
"attended with punctuality and have evinced great industry and 
thoroughness of study and research." 

One other feature of the law course of those days must be 
especially noticed, as it was, for many years, one of the great 
attractions of the School the opportunity to attend the lectures 
of the distinguished College professors outside the School. 

"Most of the law students", says Stearns in May, 1826, "have 
been lately employed for a considerable time during five days 
in the week in their attendance on the public lectures of sev- 
eral of the Professors of the University." 

So satisfactory, however, had the course of instruction appar- 
ently proved that at the end of ten years from the founding of 
the School, Stearns reported (May, 1827) : 

As the advantage of the present system of law instruction in 
the University appears to be most satisfactorily evinced by the 
industry and emulation of the students, their progression, learn- 
ing and correct deportment, the professor does not deem it 
expedient to propose any alteration in the course of instruc- 
tion. 

And again on April 2, 1828: 

The students have been generally punctual at the exercises, 
have manifested a laudable spirit of industry, attention and 



THE FIRST DECADE. 357 

decorum, and most of them have made a gratifying progress in 
legal learning. 

No change in the course of Instruction or discipline in this 
department has occurred to the Instructor as requiring the 
interference or attention of the Overseers. 

Two matters appear to have troubled Stearns, however, the 
pressure of work on the single professor and the expense to 
the students of attendance at the School. As to the first, he re- 
ports in August, 1826: 

A large portion of the Professor's time is employed in select- 
ing and preparing suitable questions and cases for argument at 
the moot court, and in assisting the students to put them into 
this form of judicious action, examining their declarations, pleas, 
replications, demurrers, bills of exceptions, motions, etc., and 
directing them in the course of their investigations and re- 
searches. But of the amount of time thus employed, and of 
that also which is devoted to answering the numerous questions, 
and solving the doubts which occur to the students, (and which 
they are encouraged and desired to suggest with freedom when 
they occur), it is impossible to make any correct estimate. 

As to the second, he states in May, 1827: 

If means could be found to diminish the necessary expenses 
attending the study of law at the University, so that it should 
not exceed the expense of private establishments of a similar 
character in the country, the number of students would unques- 
tionably increase. Without such a change, there is great reason 
to believe the number will continue (notwithstanding the great 
advantages arising from the valuable lectures of the other pro- 
fessors of the University to which the law students have gratuit- 
ous access) to be small, and perhaps less than heretofore. 

Notwithstanding the hard work of Professor Stearns, and the 
attention paid to the struggling School by the governing bodies 
of the College, the number of students did not increase, but 
gradually fell off. 

In the year 1826-27, the College Catalogue shows eight law 
students; Professor Stearns' Report of Sept. 24, 1827, gives 10, 
first term; 5, second; 3, third; whole number during the course 
of the year only 10, of whom 7 were college graduates. 

In the year 1827-28, the College Catalogue shows eight law stu- 
dents; and Professor Stearns' Report of Sept. 1828 gives the 
number as n, first term; 7, second; 8, third; whole number dur- 
ing the year 13, of whom 7 were graduates. 



358 HARVARD LAW SCHOOL. 

It may be noted that in this year the use of the term "Law 
School" and a list of the names of the Law Faculty appears 
in the College Catalogue for the first time. 

It has been customary among writers on this subject to attri- 
bute the failure of the School to Professor Stearns either his 
neglect or his ineptitude; but a careful study of the conditions 
of the times proves that the School's decline was unquestionably 
due to other causes. Certain it is, at all events, that Stearns him- 
self was conscious of no neglect on his part; for in his Report 
of Sept. 24, 1827, he says: 

j 

Though the number of students has been greatly diminished in 
the course of the year, no circumstance has occurred tending to 
show that this extraordinary change has arisen from any dis- 
satisfaction on the part of the students, their friends, or the 
public with regard to the administration and conduct of this 
department and no change in instruction or discipline of the 
department has occurred to the Instructor as deserving the at- 
tention or requiring the interference of the Overseers. 

At this point in the history of the School, Judge Parker re- 
signed his Royall Professorship, Nov. 6, 1827. While no rea- 
son for his action is now known, it is evident from the terms 
and curtness of his letter of resignation that it was not volun- 
tary: 

To the President and Fellows of Harvard University. 
Having understood from one of your body that it is desir- 
able that the office of Royall Professor of Law now held by me 
should be vacated, I hereby resign the same. 

Respectfully your 
obedient servant. 
Isaac Parker. 

This resignation was accepted by the following not over- 
effusive vote of the Corporation, Nov. 15, 1827: 

The resignation of Chief Justice Parker, Royall Professor 
of Law, being laid before the Corporation, it was thereupon, 
voted that in accepting the same, this Board express their full 
sense of the benefits which the Chief Justice has conferred on the 
University and on the public by the lectures which he has delivered 
at Cambridge, and that the Treasurer pay his salary as Pro- 
fessor till next Commencement. 



THE FIRST DECADE. 359 

It is probable that this resignation was due to the fact that 
the Corporation was extremely anxious to obtain as Professor, 
some lawyer of distinction who would reside in Cambridge, for 
it appears that a second attempt was made, early in 1828, to 
secure Judge Story; but Story again declined. 

On Feb. 9, 1828, he wrote to a friend: 

I am at this moment a good deal perplexed by an application 
to me to accept the Royall Professorship of Law at Harvard 
University, and to remove to Cambridge and devote my leisure 
to the advancement of the Law School there. The offer is made 
unofficially, but in terms of considerable earnestness, and in a 
pecuniary point of view it is eligible. What to do puzzles me 
exceedingly. . . . What to decide, I hardly know, there are 
so many pros and cons. 

And on March I, he wrote: 

I have made up my mind to decline ... it would require my re- 
moval to Cambridge, and such an increase of duties as at my 
age and with my present labors, I fear might seriously interfere 
with my health. 

Again, on March 6, he wrote to Professor George Ticknor : 

I have fears that my health would not hold out against the 
inroads of such additional labors. If I were there, I should be 
obliged to devote all my leisure time to drilling, and lectures, 
and judicial conversation. The School cannot flourish except 
by such constant efforts ; and I should not willingly see it wither 
under my hands. 

The delivery of public lectures might not be oppressive but 
success in a law school must be obtained by private lectures. I 
have yielded reluctantly to what seems to me on the whole the 
dictates of duty. 

It was especially desirable, however, during this formative 
period of American Law, that there should be on the Faculty 
of the School, some lawyer of a national practise, or some pre- 
siding judge, through whom the students could be thus brought 
into contact with the creative legal forces. Such a personal influ- 
ence was certain to be powerful. As an illustration, it may be 
noted that Judge Parker, during his professorship, delivered 
opinions in a number of cases of new impression in Massachu- 
setts, which have since become landmarks in legal history : thus, 
in 1818, he decided the first reported case of breach of promise 



360 HARVARD LAW SCHOOL. 

of marriage(i) ; in 1820, the first case on the rights of parties 
receiving counterfeit bank notes, involving the doctrine of Price 
v. Neal(2) ; in 1821, a leading case on the Statute of Frauds (3; 
in 1822, the famous case as to the completion of a contract on 
mailing of acceptance (4) ; in 1823, the first case in the country 
raising the question of the constitutionality of the Fugitive Slave 
Act (5) ; in 1824, the first case of the application of the doctrine 
of contributory negligence in a personal injury case (6). 

The year, 1828, was noted in the legal annals of Boston for 
the trial of a case over which Judge Parker presided, and which 
caused the greatest excitement in Harvard College circles. (7) 
This was the indictment of Theodore Lyman (later Mayor of 
Boston and uncle of President Charles William Eliot) for crimi- 
nal libel, at the instance of Daniel Webster. At this time, a 
heated controversy had arisen between John Quincy Adams 
and thirteen prominent representative Federalists of Boston over 
certain charges which Adams had made against the Federalist 
leaders of New England, of having conspired in 1807-1808 to 
break up the Union and re-annex New England to Great Britain. 
Adams had mentioned no names; but Lyman had published, in 
the Jackson Republican (an anti- Adams newspaper), the 
charges made, and had included Webster, with Samuel Dexter, 
Josiah Quincy, William Prescott and H. G. Otis, as one of the 
conspirators intended. In this noted case, James T. Austin (the 
State Attorney General) and Richard Fletcher (a Dartmouth 



(1) Wightman v. Coates, 15 Mass. I. 

(2) Gloucester Bank r. Salem Bank, 17 Mass. 33, argued by W. Pres- 
cott and L. Saltonstall against Webster. 

(3) Packard v. Richardson, 17 Mass. 122, argued by Webster and 
Morey against Increase Sumner. 

(4) McCulloch v. Eagle Insurance Co., I Pick. 278, argued by W. Pres- 
cott against L. Saltonstall. 

(5) Com. v. Griffith, 2 Peck, n, argued by Marcus Morton, W. Baylies 
and Theophilus Parsons against Pliny Merrick. 

(6) Smith v. Smith, 2 Pick 626. 

(7) See A Notable Libel Case, by Josiah H. Benton, Jr., (1904). 
Diary of John Quincy Adams. Papers relating to New England Feder- 
alism, by Henry Adams. 

It may be noted that this case occurred a year and a half after Webster's 
famous Eulogy on Adams and Jefferson, (both of whom had died July 4, 
1826), delivered August 2, 1826, in the presence of President John Quincy 
Adams in Faneuil Hall. 

On Sept. 22, 1826, Webster declined to deliver the Phi Beta Kappa ora- 
tion at Harvard, writing "I have recently had occasion to appear so often 
before the public that I feel entirely unwilling soon again to undertake a 
public performance." 

See Harv. Coll. Papers, Vol. I, 2nd Series. 



THE FIRST DECADE. 361 

graduate and a former student in Webster's office) appeared for 
the prosecution; and Samuel Hubbard (later Judge of the Massa- 
chusetts Supreme Court) and Franklin Dexter (son of Samuel 
Dexter, later United States District Attorney and Instructor in 
the Law School) appeared for the defendant. The trial resulted 
in a disagreement of the jury. 

It is stated that but for this case, which aroused so many 
antagonisms, Webster would have been offered the vacant Royall 
Professorship in the Law School. 

This year, 1828, is marked also, as that in which Rufus Choate 
removed to Salem, taking his place at once, at the head of the 
Essex Bar; (i) and as the year in which the famous case of 
Charles River Bridge v. Warren Bridge (described in detail in 
Chapter XXIV infra) was begun a case which was to have 
great effect upon the financial condition of Harvard College, and 
upon the commercial development of the whole country. 

For many years the College had been receiving an annuity 
from the Charles River Bridge Corporation, the plaintiff in this 
case; but owing to the incorporation of the defendant Bridge, in 
1828, this annuity was about to cease a serious financial loss. 
For the last three years, the state of the College finances had 
been weighing on the minds of the Corporation and of the Over- 
seers. The annual appropriation of $10,000 which had been 
made by the Legislature of Massachusetts for a period of ten 
years, had been discontinued in 1825. The number of students had 
fallen from 302 in 1822 to 199 in 1826. The expenses had 
exceeded income for the year 1824-25 by $5,000. The unap- 
propriated funds had been greatly reduced and the College ac- 
counts were in considerable disorder. It was evident that a 
rigid system of economy in administration must be put in 
force. (2) The condition of affairs has been thus described(3) : 

"Dr. Kirkland, the model of a dignified clergyman, an accom- 
plished scholar, a polished gentleman, bland and courteous in 



(1) "The Essex Bar was then and it had long been distinguished for 
learning and skill. The memory of Dane, Parsons, Story and Putnam was 
fresh and fragrant ; John Pickering, Leverett Saltonstall, Eben Mosely, 
David Cummins and John Varnum were still in full practice ; Caleb Gush- 
ing, Robert Rantoul, Jr. and others like them were making their influ- 
ence felt as young men of ability and ambition." 

Life of Rufus Choate, by Samuel G. Brown. 

(2) See Overseers Records of Jan. 17, [828, and statement of Corpor- 
ation to Overseers, as to expenses. 

(3) Memoirs of Josiah Quincy, by Edmund Quincy. 



362 HARVARD LAW SCHOOL. 

his intercourse with the students, by whom he was greatly be- 
loved, and universally popular in society for his genial graces, 
was not a man of business, and had no natural or acquired talent 
for the management of money. Judge John Davis, of the United 
States District Court, who was Treasurer of the College during 
the whole of Dr. Kirkland's Presidency, unfortunately was not 
fitted to make good his deficiencies in this particular. A learned 
lawyer, and a man of great general erudition, he had rather the 
tastes and habits of a retired scholar, than those of a man of 
affairs. Between them both, without the slightest impeachment 
of their personal integrity, the college finances had fallen into 
almost inextricable confusion." 

Finally President Kirkland, partly because he felt keenly the 
criticism made by certain members of the Corporation, and partly 
because of his continued ill health, resigned his position ; and the 
Corporation accepted his resignation on April 2, 1828. (i) At 
once an active struggle ensued over the election of his succes- 
sor. One faction of those interested in the College thought that 
the time had come when a business man or man of affairs should 
be placed at its head (2) ; the other faction vigorously upheld the 
old, hitherto-unshaken custom of appointing a clergyman. Relig- 
ious questions also entered into the selection of the new presi- 
dent. The Congregationalists decided to try to stem the tide 
of Unitarianism which seemed to be sweeping the College from 
all its ancient moorings. 

The community have been slumbering whilst a dereliction of 
religious and moral principle has been exemplified in the man- 
agement of Harvard College to which our country furnishes no 
parallel. ... It is confidently hoped that the triple chains of Unitar- 
ianism, Universalism and Infidelity under which the college of 
our fathers is now oppressed and sends up her sighs and groans 
to Heaven, will not be of long endurance. 



(1) See Memoir of John T. Kirkland, by Rev. Dr. John Pierce, Mass. 
Hist. Soc. Proc., 2nd Series, Vol. IX (1894-95). 

"This event produced at the time a high excitement among many devoted 
friends of Harvard. The students almost universally bewailed the measure 
and were for a season for venting their resentment against the supposed 
authors." 

(2) "Though the financial experience and skill of the Corporation, and 
especially of Dr. Bowditch and Mr. Francis, had already placed the funds 
on a sage basis, it was thought important that a man of the world, accus- 
tomed to business, should be placed at the head of the University. Mr. 
Quincy was very generally allowed to be the man to satisfy this necessity." 

See Memoirs of Josiah Quincy, by Edmund Quincy. 



THE FIRST DECADE. 363 

So wrote the editor of the Boston Recorder. "The religious 
system introduced is dishonorable to God, and ruinous to the 
souls of men" said another newspaper writer ; and an alumnus of 
the College wrote in May, 1828: 

The present reign of error dates from 1808. Unitarianism 
has engulfed in its dark flood nearly all the sons of Harvard. 
Can I place my son during four of the most valuable years of 
his life for the establishment of principles and character, at 
Cambrige College? writes "Hollis." The election of Quincy 
will be a "deep laid plot of Unitarians, they dare not elect a 
Unitarian minister" writes another. ( i ) 

The fight resolved itself into a struggle between the Congre- 
gationalist party ; the party favoring the Unitarian minister 
Rev. Edward Everett, who had been, up to 1826, Professor of 
Greek Literature, and who represented the side of the Resident 
Instructors in the effort to obtain representation in the Corpora- 
tion ; and the party favoring George Ticknor, then Professor of 
French and Spanish Literature and Belles Lettres, and the rep- 
resentative of the progressive and university spirit. When feel- 
ings ran so high that it was evident that no one of these parties 
could succeed, Samuel A. Eliot and John G. Palfrey brought 
forward Rev. Jared Sparks, a Unitarian clergyman, who had 
just done brilliant work as the editor of the North American 
Review and of the Washington Letters(2}. Others favored Har- 
rison Gray Otis. 

Finally Josiah Quincy's name was proposed, he having just 
failed of re-election as mayor of Boston in December, 1828, after 
five years of brilliant and able administration. The best friends 
of the Institution, and especially the Fellows constituting the 
Corporation, from whom the nomination was originally to pro- 
ceed, were very soon of one mind as to his peculiar fitness for 
the place at that particular juncture. The Corporation then 
consisted of Rev. Dr. Eliphalet Porter; ex-Judge Charles Jack- 

(1) For interesting evidence of this controversy, see the Quincy Pa- 
pers in the Harvard College Archives, and Facts and Documents in rela- 
tion to Harvard College, by Hollis and others. (1829). 

(2) Jared Sparks was in Europe at this time; and his friend, W. H. 
Eliot, wrote to him Jan. 26, 1829: 

"If you had been in the country you would have been chosen. This and 
the unquestionable fact that if Quincy had not lost his election as mayor 
he would never have been thought of for the office shows upon what tri- 
fles great events sometimes hinge in the world." 

See Life and Writings of Jared Sparks, by Herbert B. Adams. 



364 HARVARD LAW SCHOOL. 

son, late of the Massachusetts Supreme Court; Judge Story; 
Nathaniel Bowditch, the author of the Navigator, and the trans- 
lator of Laplace; Francis Calley Gray; and Ebenezer Francis, 
the Treasurer. And at its meeting of Jan. 10, 1829, (Story 
being absent) it elected Quincy unanimously. (i ) 

The Overseers confirmed this action Jan. 29, 1829, although 
the opposition showed itself to be strong, the vote standing 46 
to 42. 

Meanwhile the Law School situation was becoming desperate. 
In the year 1828-29, the College Catalogue gives the number 
of law students as six; but according to Stearns' Report of Dec. 
24, 1828: 

The number of students attending the Law School during 
the greater part of this time was only four. Near the close of 
the term, the number was increased to five they have been gen- 
erally attended to separately in their examinations and reviews 
though two of them have occasionly been heard together in their 
exercises. . . . It is due to the students to state that, while 
all of them have manifested a laudable spirit of industry, two in 
particular have pursued their studies with great ardor and per- 
severance and have made very gratifying progress. 

By the spring of 1829, though no official report is in exist- 
ence, it is stated that the number was reduced to one lone law 
student. 

While the Law School was not a matter of great expense so 
far as present salaries were concerned, the need of a new build- 
ing, urged as early as 1825 by Professor Stearns, was appar- 
ent if the School was to be a success. Furthermore if new 
professors were to be appointed, some provision must be made 
for more adequate salaries. The receipt of $100 per student 
by the University Professor was ridiculously insufficient con- 



(i) In January, 1829, Story wrote to Mr. Bowditch: 

"Since we last met Mr. Quincy has been named as a candidate. If our 
friend Mr. Ticknor is to be passed by, I am ready to vote for Mr. Quincy. I 
think he has more qualifications than any other candidate. If you should 
come to a choice, I authorize you to give my vote for Mr. Quincy, if the 
Board will allow my vote when I am absent." 

See Harv. Coll. Papers, Vol. Ill, 2nd Series. On the Corporation Rec- 
ords of Jan. 15, 1829, is the following: 

"Mem. A letter was read from Judge Story proposing Mr. Quincy as 
a candidate and stating his readiness to vote for him . . . But it was 
considered that absent members do not vote by proxy." 




L 




/ 



THE FIRST DECADE. 365 

pensation for the time spent ; and the salary of the Royall Pro- 
fessor ($400) was hardly more than a nominal sum.(i) 

The Corporation felt that the one thing needful was to bring 
to the School as a permanent professor some lawyer with a na- 
tional reputation. But no such man could be found who would 
accept the small salary of the Royall Professorship. The only 
other alternative seemed to be to displace Professor Stearns. 
It would appear from the College Records that some friction 
had arisen between the Corporation and Stearns as early as 1827, 
for in December of that year the Corporation had voted that : 

the Treasurer and Mr. Gray be a committee to settle all ac- 
counts between the College and Professor Stearns and also all 
demands which have been put into his hands for collection. (2) 

A year later, on June 19, 1828, the Corporation voted : 

It having been represented to the Corporation that Professor 
Stearns had accepted the office of County Attorney of the County 
of Middlesex, Judge Jackson and Mr. Gray were appointed a 
committee to inquire into the subject and report to the Board 
thereon (3). 

No action, however, was taken as to the Law School until after 
the election of the new President. Then the Corporation took 
the bull by the horns ; and before President Quincy was fairly 
in office, it voted on March 19, 1829, that "Dr. Porter, Judge 
Jackson and Mr. Gray be a committee to consider the state of 
the Law School and to make report thereon." 

No report was ever made by this Committee; for Professor 
Stearns, after a conference with it, decided to resign voluntarily, 
and accordingly, on April 7, 1829, he addressed the following 



(1) In the First Annual Report of the President dated January I, 
1827, the salaries paid to the Law Professors for the year 1825-26 are set 
down as Professor Parker $400 Professor Stearns $1270. In the Sec- 
ond Annual Report, Jan. I, 1828, it is stated "Professor Stearns receives 
the amount paid by the students (supposed amount $700)." 

(2) On April 10, 1828, the Committee reported to the Corporation that 
they had made a settlement of all accounts. 

(3) Professor Stearns sent a letter (not now extant) to the Corpora- 
tion Oct. 16, 1828, in reply, which from the records of the Corporation ap- 
pears to have been referred to Judge Jackson and Mr. Gray. 

It is somewhat difficult to understand this vote of the Corporation, for 
Professor Stearns had been District Attorney for Middlesex County ever 
since 1813. 



366 HARVARD LAW SCHOOL. 

interesting, and decidedly pungent letter to "Rev. Dr. Porter, 
Senior Member of the Corporation of Harvard College"(i): 

In the interview which I had with you in relation to the dis- 
solution of my connection with the college, my feelings were 
expressed without reserve and I am anxious that they should 
not be misunderstood. 

You will readily believe that if I could have foreseen this 
result at the time I was solicited to accept the appointment of 
Professor of Law, I should have declined the proffered honor. 
The failure of the experiment, as you were pleased to call it, 
must doubtless have been a severer disappointment to me, than 
to any other person, however anxious he may have been for 
the interest and honour of the College. And I must say that 
it was equally unexpected and painful to me to find that I was 
considered answerable for this failure. 

You will readily believe that my interest in the success of 
the Law School must have led me to watch the progress of 
events with solicitude; and so far as I was capable of judging, 
it may be supposed that I possessed the means of tracing effects 
to their causes. I trust, therefore, that I shall be pardoned for 
alluding to some of the chief causes which have operated to 
the injury of that institution; and these appear to me sufficient 
to account for what I have so long witnessed with regret, while 
it could not be prevented, but by the fostering aid of the Corpor- 
ation. 

1. I may mention in the first place the great diminution in 
the number of law students in the State, which, I understand, in 
the country (however it may be in the city) is but about half 
as large as formerly. (i) 

2. The establishment of similar institutions elsewhere, par- 
ticularly in Virginia (which for some years furnished full one 
third of our number) and at Northampton where the saving of 
expenses in board and especially in room rent, fuel, etc. (which 
are understood to have been furnished gratuitously to those who 
were poor) have held out powerful inducements in addition to 



(i) See letter (hitherto unpublished) in Harv. Coll. Papers, Vol. Ill, 
2nd Series. 

(i) See an interesting letter from Rufus Choate, in Salem, to Edmund 
Carleton (who was practising law in New Hampshire), June I, 1823: 

"I really do not think Massachusetts at all a promising stand for a young 
practitioner. As inevitably happens in every old community and in all 
kinds of business, the profession is full to overflowing and starvation, and 
in this country particularly the complaint is general and earnest. The 
amount of professional business varies very much with the condition of our 
foreign commerce and lawyers and merchants grow rich or poor together. 
The latter are becoming insolvent, and looking to a war in Europe as a 
last and only chance of relieving their fallen fortunes ; the former lounge 
in their offices, pick clean teeth, and talk of the scarcity of clients and the 
still greater scarcity of fees and neglect of merit." 



THE FIRST DECADE. 367 

local advantages. To this I may add, that several gentlemen 
who sent their sons there, have assured me that they should have 
preferred Cambridge but for their desire to separate their sons 
from particular associates. 

3. The great convenience to professional gentlemen, especially 
in the country, of having a law student in their offices has in- 
duced them to give gratuitous instruction in many more cases 
than formerly. 

In many instances, this circumstance has induced young gen- 
tlemen to change their determination to study at Cambridge, and 
to leave the place sooner than they had intended. 

4. Perhaps the want of a convenient and respectable build- 
ing for the Law School has had quite as much influence as any 
of the circumstances alluded to, since the erection of the theo- 
logical college has led the law students to contrast their situa- 
tion with that of the students of theology. 

In making these remarks, I hope I shall not be misunderstood. 
This is not offered as an apology ; for I am not conscious of 
needing one. My only desire is to have facts known that cor- 
rect inferences may be drawn. I wish to have it distinctly un- 
derstood that I claim to have discharged my official duty faith- 
fully and conscientiously and to have conducted the business of 
instruction in my department in as acceptable and satisfactory 
a manner both to my pupils and their friends as any department 
of the College. I have therefore only to request (what certainly 
will not be refused by my judges) that the case shall be examined 
and understood before any censure is cast upon me. 

You did not intimate, sir, that any complaint had been made, 
or any unfavorable representation presented to the Corporation. 
But as it has been stated to me that a report has been circulated 
by one person that two or three students from Virginia had 
expressed some dissatisfaction with regard to the Law School, 
it is possible that report may have come to the knowledge of the 
Corporation or some of the members. I therefore beg leave to 
state that I have in my possession letters from those gentlemen, 
introducing their friends to the Law School, and containing 
such expressions as render it in my view utterly incredible that 
they can have made the statements imputed to them. 

Though this letter has extended so much beyond the limits 
to which I intended to confine myself, I must still beg your indul- 
gence for one further remark. From something you let fall I 
was led to suppose that some of the gentlemen of the Corpora- 
tion regarded the money expended upon the Law School, as 
an appropriation which had produced little or no public benefit. 
A different opinion must, I think, be entertained by the pro- 
fessional gentlemen of that body. I am sure they cannot but 
be aware, that the effect which the Law School has had in raising 
the general standard of professional education, by introducing 
a more methodical and thorough course of instruction, has of 



368 HARVARD LAW SCHOOL. 

itself (if no other benefit had resulted) more than compensated 
for the expenditure. The course of instruction pursued here, 
which was drawn up under the eye of some of the present mem- 
bers of the Corporation, has not only been adopted in other law 
schools, but more than 60 professional gentlemen in this and 
adjoining States have applied for copies for the use of their 
students. And what is still more important, students in law 
offices have been more attended to and better instructed in con- 
sequence of the establishment of the School. 

I cannot but hope, sir, that these suggestions will be received 
in the spirit of candour, and that however they may fail to 
establish any claim to the respectful consideration of the Cor- 
poration, they may at least shelter me from censure, and that 
I may still indulge the belief that the respect and attachment 
manifested by my pupils was in their opinion not wholly unde- 
served. This is the first occasion which I have had to speak 
in my own vindication ; perhaps you may think I should rather 
say my own commendation. If the occasion cannot excuse it, 
it must go unexcused. 

You will please to consider me, sir, as hereby tendering my 
resignation of the chair of University Professor of Law which 
I shall not consider myself as holding after this day. 

I shall rejoice at all times in the respectability and welfare 
of the University and especially to see the Law Department 
revive and flourish in more competent and more favored hands, 
however keenly I may feel the unkindness I have experienced. 

You will please to accept my acknowledgment for the per- 
sonal courtesy I have experienced in my interviews with you, 
and to be assured I am, as ever, 

Your obedient servant, 

Asahel Stearns. 

Professor Stearns' resignation was promptly accepted by the 
Corporation by vote of April 16, 1829: 

Voted. That the Corporation accept his resignation entertain- 
ing a respectful sense of his distinguished attainments in legal 
science and of his diligence and fidelity in performing the duties 
of his office and a sincere wish for his future happiness. 

Voted. That the Treasurer in settling his account with Pro- 
fessor Stearns allow him usual tutition fees up to close of 
the present College year for the students in the Law School at 
the time of his resignation. 

Voted. That Dr. Stearns be requested to retain the use of 
the rooms now occupied by him and of the Law Library in his 
possession till the end of the present term, if this be any accom- 
modation to him. 



THE FIRST DECADE. 369 

Professor Stearns was undoubtedly correct in attributing the 
failure of the School to causes outside of the School itself. 

In the first place, the difficulty of access to Cambridge from 
other parts of the United States was a great obstacle ; for it 
is to be borne in mind that it was not until 1829 that the first 
railroad corporations were chartered. 

Thus, the noted Philadelphia lawyer, Peter S. DuPonceau, 
in his Address delivered before the Trustees and members of 
the Society for the Promotion of Legal Knowledge, in Phila- 
delphia, Feb. 21, 1821, said in urging the founding of a national 
school of Jaw : 

If that justly celebrated Seminary (Harvard Law School) 
were situated elsewhere than in one of the most remote parts 
of our Union, there would be no need perhaps of looking to 
this city for the completion of the object which we have in view. 
Their own sagacity would suggest to them the necessity of ap- 
pointing additional professors for each important branch of our 
legal system and thus under their hand would gradually rise a 
noble temple dedicated to the study of our national jurisprudence. 
But their local situation and that alone precludes every such 
hope ; for otherwise the world well knows that they are neither 
wanting in inclination or ability to pursue any great object that 
may redound to their fame and the benefit of their country. 

The expenses of life at Harvard, the lack of a proper building 
for the School, the prejudice in States outside of New England, 
as well as within, against the supposedly ultra-Unitarian pro- 
clivities of Harvard, the depressed conditions of the national 
finances during many of the years 1817-1829, and especially the 
rise of other law schools more conveniently located (i ) all these 



(i) At New Haven, Conn., the law school kept by Seth R. Staples and 
Samuel J. Hitchcock was in thriving existence from about 1800 to 1824, at 
which latter date the noted Judge David Daggett became its head. In 
1826, Judge Daggett was appointed to fill the vacant professorship of law 
in the academic department of Yale College (previously held by Elizur 
Goodrich 1801 to 1810). The school was not however recognized as the 
Yale Law School for some years later, (no degrees being conferred on its 
graduates until 1843.) See Yale in its Relation to Law in Yale Law Jour- 
nal, Vol. XI (1901). 

In Philadelphia, the "Law Academy" founded by Peter S. DuPonceau in 
1821 afforded an opportunity for students of law to attend lectures by the 
eminent practitioners of that city, and in his address to the students. April 
22, 1824, DuPonceau said. "Law Schools within these 2 or 3 years have 
been increasing in this country to an astonishing degree and the most 
exalted characters do not disdain to fill professor^-' chairs." 

In Virginia, Dr. Thomas Cooper had been elected temporary Professor 
of Law in the University of Virginia, in 1817; and, after declinations by 
24 



370 HARVARD LAW SCHOOL. 

factors combined with the fact that the legal profession had 
not yet fully accepted the idea that law could be learned better 
in a school than in an office prevented any great growth of the 
School. 

And hence, with no blame to be attached to the devoted, in- 
dustrious and genial professor, the first period of the Harvard 
Law School ended in complete failure . 

Francis W. Gilmer and his brother-in-law William Wirt, John Taylor 
Lomax had been appointed permanent professor in 1826. See Jefferson, 
Cabell, and the University of Virginia, by John S. Pattern. (1906). 

The College of William and Mary continued to furnish an ample course 
of legal education. There were also in Virginia several local private law 
schools, the most noted being that founded by Judge Creed Taylor in 1821 
at Needham, Va., the average attendance of students at which was twenty. 
See Journal of the Law School and of the Moot Courts attached to it at 
Needham in Virginia, by Creed Taylor (1822.) 

In Massachusetts, the noted private school at Northampton founded by 
Judge Samuel Howe and Hon. Elijah H. Mills, assisted by John Hooker 
Ashmun flourished from 1823 to 1829 with a yearly average attendance of 
ten students. In October, 1828, the eminent Theron Metcalf (later Report- 
er of Decisions and Judge of the Massachusetts Supreme Court) opened 
a law school at Dedham; see American Jurist, Vol. VIII (1829); and 
Theron Metcalf, by George S. Hale, Mass. Hist. Soc. Proc. (1876.) 

In June, 1829, a law school was opened at Amherst by Samuel F. Dick- 
inson referring to which the American Jurist, Vol. VIII (1829), said 
editorially "We are glad to witness the efforts which are making to render 
law education in this country thorough and systematic." 



CHAPTER XVIII. 
THE LAW LIBRARY 1817-1829. 

One of the features of the new School, on which Professor 
Stearns had been most insistent in drawing up his prospectus, 
was the institution of a law library ; for the few hundred volumes 
of law books then contained in the general College Library con- 
stituted a very incomplete and insufficient collection for educa- 
tional purposes. Most of them had been the gift of Thomas 
Hollis to whom is due the credit of being the father of the Law 
Library; for after the burning of the College Library in 1764, 
he presented to the College a number of rare and valuable books 
of law. These were mainly, however, works on the Civil Law 
such as Corpus Juris Civilis, Codex Theodosianus, Brissonius, 
Voet, Zoesius, Domat, Meerman's Thesaurus, Lindenbrogius 
on Codex Legum Antiquarum; there were few books on the 
Common Law Bracton, Glanville's Tractatus de Legibus, 
Home's Mirror, Earning ton's Observations on the Statutes, and 
Bacon's Historical Discourses being practically the only works of 
this description. In addition there were Burn's Ecclesiastical Law, 
Carpenter's Glossarium, Prynne's Sovereigne Power of Parlia- 
ments and his Chronological Vindication of the King's Supreme 
Ecclesiastical Jurisdiction. 

In 1779, two years before Royall's death, a bequest had been 
made to the College to lay the foundations of a law library, by 
Theodore Atkinson (Harvard 1718, Chief Justice of New Hamp- 
shire 1754-75), who by his will left one hundred pounds for the 
purchase of "such books as may be thought useful in the study 
of Civil, Statute, and Common Law of England, the books so 
purchased to be placed in that part of the College library assigned 
for the donations made by the Province of New Hampshire, 
the gilded letter T. A. to be impressed upon one of the covers of 
each volume."(i) 

In 1787, John Gardiner, one of the few native lawyers of 



(i) See Mass. Hist. Spc. Coll., ist Series, Vol. VII; Vol. IX; Vol. X. 
History of Harvard University, by Josiah Quincy, Vol. II. 



372 HARVARD LAW SCHOOL. 

Massachusetts who received an education in the English Inns of 
Court, and who was the leader in the movement to reform the 
methods of the Bar, 1785-1787, gave to the College a number of 
choice law books including Regis trum Brevium, Retorna Brevium, 
Britton and Taylor's Civil Law. (i) 

On Feb. 21, 1814, the Corporation appointed a Committee 
with authority "to expend $300 in the purchase of books at the 
sale of the library of the late Chief Justice Parsons" ; and it is 
probable that most of the books so bought were law books. 

With these exceptions little is to be ascertained of the acquire- 
ment by the College of any books on law. 

Hence when the Law School was founded the Corporation saw 
clearly that one of the first needs to be supplied was a working 
law library. Accordingly at the same meeting, Sept. 5, 1817, 
when it voted rooms for the new Law Department, the Corpora- 
tion passed a vote that "$500 be expended for purchasing law 
books by the Treasurer joined to the Professor of Law". 

A year later, Nov. 17, 1818, Professor Stearns reported to the 
Corporation that he had purchased books to "the amount of 
$681.74, exceeding the appropriation of $500 and also a donation 
made by Mr. John How of $100." His account was approved ; 
and at the same time it was voted that : 

The University Professor of Law be authorized from time to 
time to receive from the College Library into his custody such 
law books as a committee of the Corporation appointed for the 
purpose shall think proper, said Professor to give a receipt and be 
accountable for the same and to return them when required. 

Voted that the said books shall be subject to the claims of all 
persons who have the use of the Library by the Standing laws 
of the College. 

Voted that it shall be the duty of the Corporation to examine 
the State of the said books annually. 

On Oct. 26, 1819, the Committee of the Overseers to visit the 
Library made a report as to the condition of affairs saying: 

By finding so very large a number of Law Books removed from 
the Library, the Committee with great deference would inquire 
whether this accommodation granted to a particular department 
may not establish a precedent which shall lead Professors in 

(l) See Preface by Charles Sumner to the Catalogue of the Library 
of the Harvard Lazv School (1834) ; and American Jurist, Vol. XI (Jan. 



THE LAW LIBRARY. 373 

other branches, not merely to solicit, but with the greatest pro- 
priety to expect, a like indulgence, and thus be the means of 
parcelling out the Library into private houses, beyond the care of 
the College Librarian and the use of those who apply for books, 
of which he is expected to keep a record and take a receipt. 

and on November 6, 1819, a Committee of the Corporation 
also made a Report recommending that new Alcove Catalogues 
should be made, and inquiring whether "the removal of a large 
number of Law Books which have been transferred to the Law 
Library may not establish a precedent which shall lead Profes- 
sors in other branches to expect a like indulgence." 

In 1822, the Law Library received an interesting accession 
from Hon. Christopher Gore who in a letter to Pres. Kirkland, 
of June 4, wrote(i) : 

I take the liberty to send you for the Law Library of the 
University a copy of some opinions and judgments of the Board 
of Commissioners under the 7th Article of the Treaty of 1794 
between the U. S. and Great Britain. 

It is possible that some future occurrences may excite a desire 
to know the Principles and Grounds which influenced the Con- 
struction of that article and the Decisions of the Board. 

From a Report made the last winter by a Committee of the 
House of Representatives of the United States there is reason to 
conclude that a similar copy which was in the office of the 
Department of State & Treasury was destroyed in the confla- 
gration of Public Buildings at Washington in the last war. 

Mr. Pinkney had a copy which excepting this one herewith 
sent is all that I believe to be in existence in this country. 

Between 1817 and 1826, Mr. Gore gave to the College for the 
use of the law students the greater part of his valuable law library, 
comprising several very rare old books, many of which formerly 
belonged to R. Auchmuty, James Otis, Jeremiah Gridley, and 
Samuel Sewall and contained their autographs. In the Cata- 
logue of 1826, 119 volumes are marked as presented by him. 

And in 1823, it is apparent that interest from outside was 
beginning to be taken in the new Law Institution, for the rec- 
ords of the Corporation on June 3, show the acceptance, from 
Hon. Daniel Chipman, of Vermont, of his Essay on Law of Con- 
tracts for the Payment of Specific Articles. 

(i) See Harv. Coll. Papers, Vol. X. 



374 HARVARD LAW SCHOOL. 

On September 28, 1825, the Corporation voted that: 

The following works at the request of the Law School be 
allowed to be removed to the Law School Library and placed 
therein the usual receipts being given by Professor Stearns. 
Viner's Abridgment 24 Vols. folio, Bacon s Abridgment 5 Vols. 
folio, Modern Reports, 10 Vols. folio, Raymond's Reports 2 
Vols. folio Strange' s Reports 2 Vols. folio. And that the Presi- 
dent and Librarian shall report rules for the regular examination 
of books in the Law Library ; also that proper care be taken that 
the College seals be in the books. 

On June 12, 1826, the Library Committee of the Overseers 
reported : 

Having found that during the last year a considerable number 
of volumes had been removed to the office of the Professor of 
Law, in addition to the former deposits there, your Committee 
suggests the propriety of having a catalogue of what is now called 
the "Law Library", and that the books should be annually 
inspected by the Visiting Committee. 

June 18, 1827, the same Committee reported that ''no examina- 
tions were had of the Law Library and no catalogue of it was 
furnished/' The condition of the Law Library had by this time 
become inextricably confused, owing to the fact that it was com- 
posed not only of books purchased especially for it, but of books 
transferred from the College Library, and of the private books 
belonging to Professor Stearns and loaned by him for the use of 
the law students. 

Besides the $500 originally given by it and the $100 donated 
by John How, the Corporation had voted, in 1825, to appropriate 
the proceeds of a note from one Royal Makepeace, towards the 
purchase of books for the Law Library. 

This vote had been secured through the efforts of Professor 
Stearns, into whose hands the collection of the claim of the Col- 
lege against Makepeace had been placed; and on Nov. 2, 1825, 
he wrote : 



(i) See Vote of Corporation of June 22, 1821. empowering Stearns 
"to take measures to secure the debt due to the College from the Cam- 
bridge & Concord Turnpike Associates" for land belonging to the College 
taken by the Turnpike. Also letter of Stearns to Makepeace as to $4,293 
due to the College, August 9, 1823, Harv. Coll. Papers, Vol. X. 

The claim was settled by taking Makepeace's note for $4,310 on which 
$3,200 was allowed for a conveyance of 1-5 part of 4 lots Easterly of the 
triangular lot, between the Charlestown and Lechmere Point Roads (the 
Delta) and 3 acres of marsh near Lechmere Point (East Cambridge). 

See letter of Stearns to J. Davis, May, 1827, Harv. Coll. Papers, 2nd 
Series, Vol. II. See also Harv. Coll. Papers, Vol. XI. 



THE LAW LIBRARY. 375 

It will probably be recollected by Judge Davis and Mr. Pres- 
cott that, when I was endeavouring to bring about this arrange- 
ment, they individually gave me encouragement that, if it could 
be effected, they should be willing to appropriate a part of the 
sum to the purchase of Books for the Law Library. 

Lender that expectation, I have put into the Library a complete 
set of Johnson's Reports and others necessary, to the amount of 
near $300 purchased with my own money. But we are still with- 
out Wheatoris Reports published 1816-1828, and many other 
books which are much needed. 

In May 1827, he wrote: 

The Corporation having appropriated the proceeds of the debt 
due from Mr. Makepeace to the purchase of books for the Law 
Library, we were in great want of them and I expected the money 
would be received soon. I advanced my own money for that 
purpose nearly two years ago, and having made several purchases, 
before I had added together the amount of the bills, I found the 
sum I had laid out much larger than I had supposed, being nearly 
$700. 

In 1826, a pamphlet catalogue of the Law Library was pub- 
lished, which, not being issued by the official authorities, was 
prepared and sold among the students, at their request, by John 
B. Hill and William G. Stearns (son of the Professor) then 
students in the School. On the flyleaf of the copy now (1908) 
in the Law School, is an explanation of the various marks set 
against the books marks which illustrate the confused condition 
and sources of the Library, and denote respectively "Books pre- 
sented by Mr. Gore" "Books removed from the College Library" 

"Books remaining in the College Library"- - belong 

to the University Professor" ( i ). 



(i) The following letter from Stearns to Quincy July 8, 1829. illustrates 
the loose practice in making purchases for the Library and also shows 
Stearns' wounded feelings at his compulsory resignation. 

"I am sorry to have occasion to trouble you upon a subject of little im- 
portance, tho' of considerable interest to myself. Sometime ago T was 
authorized to purchase books for the Law Library of the University. And 
among other purchases I bought at auction a number of old German books 
on the Civil. Common and Federal Law. A few of these old books were 
originally purchased for my own use but most of them were intended for 
the Law Library of the College. 

About two years ago, supposing that if my life should be spared I should 
remain in the office I then held, I was induced by that consideration to 
place in the Law Library the above mentioned books, which were pur- 
chased for my own Library. And when T settled with the Treasurer of 
the College. April 7, 1829. for the books T had purchased, I also received 
from him the price T had paid for the books in question. 



376 HARVARD LAW SCHOOL. 

"Purchased by the Professor to be paid for out of the Make- 
peace debt" "Purchased in 1817 and 1819 with funds furnished 
by the College and donation of $100 from the late John Howe 
of Boston" "Given by a Resolve of the Legislature obtained by 
the Professor in 1818" "Books missing". 

This catalogue contains 736 titles, comprising a little over 
1752 volumes. Deducting the books belonging to the College 
Library and to Professor Stearns (afterwards withdrawn by 
him when he resigned), there remain about 1326 volumes in the 
actual possession of the Law Library at this early date. ( I ) 

I have now Sir to beg the favour of your laying before the Corporation 
my request that they will allow me to take back those old books (only n 
volumes) repaying to the College the price I received for them with 
interest. I trust this request will not be refused by the Corporation when 
I assure them that these books would certainly have been retained in my 
library, if at the time I placed them in the Law Library I had even sus- 
pected that I should be so soon expected to surrender the office 1 then 
held." 

List of Books $11.40 

Interest 15 months 85 



$12.26 

See Harv. Coll. Papers, yd Series, Vol. III. 

(i) The Harvard Law Library, by J. H. Arnold. Harvard Graduatets 
Magazine, Vol. XVI (1907). 

See .also Preface to First Edition of the Laiv Library Catalogue (1834), 
by Charles Sumner ; and the Report of the Law School Visiting Com- 
mittee of the Board of Overseers, Feb. 1st, 1849, written by Sumner. 



CHAPTER XIX. 
THE BAR AND THE LAW, 1815-1830. 

The years 1815-1830 were an era of great cases and great 
lawyers. 

At the beginning of this period it is to be noted that the 
Federal Bar was still almost entirely Eastern in its composi- 
tion^) a fact well illustrated by an entry by John Quincy 
Adams in his diary, Oct. 30, 1817: 

The President said ... he had written this morning Mr. 
Wirt of Richmond, Virginia, offering him the office of Attorney 
General; but it was very doubtful whether he would accept it. 
The President said that he should have been very desirous of 
having a western gentleman in the cabinet but he could not see 
his way clear. He had taken great pains to inform himself but 
he could not learn that there was any one lawyer in the western 
country suitably qualified for the office. He had particularly 
inquired of Judge Todd who had assured him there was no such 
suitably qualified person. Graham said that he had inquired this 
morning of Mr. Clay who told him also confidentially the same 
thing that there was no lawyer in that country fit for the office 
of Attorney General. 

William Wirt succeeded Richard Rush as Attorney General, 



(i) Ten new States had been admitted into the Union prior to 1830. 

Kentucky was admitted in 1792. Its first law reports were Hughes Re- 
ports in 1803, the next, Kentucky Decisions in 1810. 

Tennessee was admitted in 1796. Its first law reports were Overton's 
in 1813. 

Ohio was admitted in 1802. Its first law reports were Hammond's in 
1823. 

Louisiana admitted in 1812. Its first law reports were Martin's, pub- 
lished in 1811 for the Territorial decisions and in 1812 for the State Court 
decisions. 

Indiana was admitted in 1816. Its first law reports were Isaac Black- 
ford's in 1830. 

Mississippi was admitted in 1817. Its first law reports were Robert J. 
Walker's in 1834. 

Illinois was admitted in 1818. Its first law reports were Sidney Breese's 
in 1831. 

Alabama was admitted in 1819. Its first law reports were Henry 
Minor's in 1829. 

Maine was admitted in 1820. Its first law reports were Simon Green- 
leafs in 1822. 

Missouri was admitted in 1820. Its first law reports were in 1827. 



HARVARD LAW SCHOOL. 

accepting the position because it facilitated his private practice 
in the Supreme Court; and held the office until 1829. ( i) 

During this period, the Bar of the United States Supreme 
Court showed a marked change in composition ; the lawyers of 
Pennsylvania and Maryland no longer held undivided sway ; and 
the Bars of the other States contributed many eminent counsel, 
especially after 1825, when the city of Washington became easier 
of access, through the advent of steamboats in the West and 
East. 

William Pinkney remained the undisputed head of the Bar, 
until his death, in 1822(2). Thereafter, Daniel Webster over- 
shadowed all others in the number and importance of cases 
argued, and in the mastery of the great principles of constitutional 
law ; although he had close rivals in Wirt, and Littleton Waller 
Tazewell, of Virginia. In a letter of May 9, 1822, Wirt writes 
to his brother-in-law : 

Tazewell and Webster have been reaping laurels in the Supreme 
Court, and I have been sighing. North of the Potomac, I believe 
to a man, they yield the palm to Webster ; South, to Tazewell. 
So, you see, there is section in Everything. Time will set all these 
matters right. 

The difficulties attendant on travelling to Washington in those 
ante-railroad days were reflected by the immense number of cases 
argued by eminent counsel residing in the District of Columbia. 
Probably from one-fifth to one-fourth of all the cases, appearing 
in the volumes of the reporters, Henry W 7 heaton and Richard 
Peters, during this period, were argued by Francis Scott Key, 
Thomas Swann, Walter Jones, or Coxe all local counsel residing 
in or about Washington. From Massachusetts, the chief counsel 



(1) Prior to the passage of the Act of 1814 requiring the Attorney 
General to reside in Washington, such residence had not been necessary ; 
and William Pinkney resigned the office in 1814, because of the injury to 
his immense private practice in Baltimore which would be caused by his 
compliance with the statute. 

(2) Wirt wrote, May 9, 1822 : 

"Poor Pinkney! He died opportunely for his fame. It could not have 
risen higher. He was a great man. On a set occasion, the greatest, I think 
at our bar. I never heard Emmett nor Wells, and therefore. I do not say 
the American bar. He was an excellent lawyer ; had very great force of 
mind, great compass, nice discrimination, strong and accurate judgment; 
and for copiousness and beauty of diction was unrivalled. He is a real 
loss to the bar. No man dared to grapple with him without the most per- 
fect preparation and the full possession of all his strength." 

See Memoirs of William Wirt, by John P. Kennedy, Vol. IT. 



THE BAR 1815-1830. 379 

who argued before the Court were Webster and George Blake; 
from Rhode Island, Ashur Robbins and William Hunter ; none 
of the other New England States were represented by counsel in 
more than two or three cases. From New York, David B. Og- 
den(i) appeared in a large number of cases; Henry Wheaton 
and Thomas Addis Emmett were almost equally prominent ; 
and Ogden Hoffman (2), Samuel A. Foot(3), T. J. Oakley(4), J. 
Prescott Hall(5), and C. G. Haines(6) argued a few notable 
cases. From Pennsylvania, the names of John Sergeant, Joseph 
R. Ingersoll and Charles J. Ingersoll were the most prominent. 
Of the New Jersey Bar, George Wood (7) was the leading rep- 
resentative. The lawyers of Maryland naturally appeared in a 
large number of cases William Pinkney, W. H. Winder, R. 
G. Harper, David Hoffman (8), and (beginning about 1824-1825) 
Roger B. Taney(9) ; Virginia sent L. W. Tazewell(io), Edmund 
J. Lee, Benjamin Watkins Leigh(n), Philip N. Nicholas (12), 
and Charles C. Lee. 

The unsettled condition of the finances, of real estate titles, 
and of the law in general, in a new frontier State, having some- 
what crude courts, is shown in the undue proportion of cases 
coming from Kentucky and argued by Kentucky lawyers, 



(1) Born in 1769. 

(2) Born in 1793, son of Josiah Ogden Hoffman, Columbia graduate 
of 1812. District Atty. of N. Y., 1829-35, for twenty-five years counsel in 
almost every notable criminal trial, 1840-45, U. S. Dist. Atty., i85V55. Atty. 
Gen. of N. Y. 

(3) Born in i/oo, Union Coll. 1811, Judge of Court of Appeals 1851. 

(4) Born in 1783, Yale 1801, Atty. Gen. 1819, Judge of the Superior 
Court 1828, Chief Justice 1846. 

(5) Born in 1796, Yale 1817. 

(6) Born in 1793, Middlebury Coll. 1816. 

(7) Born in 1789, Princeton 1808, studied with Richard Stockton; ad- 
mitted 1812; in 1837 removed to N. Y. 

(8) Born in 1787, Professor of Law in University of Maryland 1817-36. 

(9) Born in 1777, Dickinson College 1795, studied with judge Samuel 
Chase, admitted 1799, brother-in-law of Frances Scott Key, U. S. Atty Gen. 
1831-1833, C. J. of U. S. Supreme Court 1837-1864. 

In March, 1826, Story wrote : 

"A cause is just rising which bids fair to engage us all in the best man- 
ner. It is a great question of legal morality, which, after all, is being 
sound morality. Webster, Wirt, Taney (a man of fine talents, whom you 
have not probably heard of) and Emmet are the combatants." 

This case was probably Cassell v. Carroll, n Wheaton 184. 

(10) Born in 1777. William and Mary Coll. 1792; admitted 1796, U. S. 
Senator 1824. 

(11) Born in 1781, William and Mary Coll. 1802, U. S. Senator 1834. 

(12) Born in 1773, Atty. Gen. 1793, Judge of Court of Appeals 1823. 



380 HARVARD LAW SCHOOL. 

Henry Clay, Benjamin Hardin(i), Charles A. Wickliffe, George 
M. Bibb (2), and Isham Talbot(3). 

Of lawyers from other Southern and Western States from 
Tennessee, came James K. Polk (4), and John H. Eaton(5) ; 
from Missouri, Thomas H. Benton(6) ; from Ohio, Charles 
Hammond(7) and Thomas Ewing(8); from Georgia, John 
McPherson Berrien(9) ; and from South Carolina, Robert Y. 
Haynes(io), and Hugh S. Legare(n). 

During these years, 1815 to 1830, the changes in the United 
States Supreme Bench were few. In 1823, Brockholst Livings- 
ton, of New York, died, and a strong effort was made to secure 
the appointment of Chancellor James Kent in his place ; but 
Kent's political Federalist views were too bitter to be acceptable 
to President Monroe, and Smith Thompson, one of Kent's asso- 
ciates when on the New York Supreme Court, was appointed. 
In 1825, Thomas Todd of Kentucky died, and was succeeded 
by Robert Trimble of Kentucky. In 1829, Trimble died, and 
John McLean of Ohio, took his place. In the same year, Bush- 
rod Washington's death led to the appointment of Henry Bald- 
win of Pennsylvania. 

An average of less than forty cases a year were decided by 
the Court during this period ; and the comparatively small prac- 
tise of lawyers in the Federal Courts is marked by the lack of 
reports of cases in the Circuit and District Courts, and the small 
sales of Supreme Court Reports. 

Peter's Admiralty Reports (covering cases beginning in 1792) 
was published in 1807; Gallisoris Reports (First Circuit, cover- 



(1) Born in 1784. admitted in 1806. 

(2) Born in 1772. Princeton 1792, U. S. Senator 1811-14, 1829-35, Sec. 
of Treasury 1844. 

(3) Born in 1773. studied with George Nicholas the first Atty. General 
of Kentucky, U. S. Senator 1815-19. 

(4) Born in 1795, Univ. of No. Car., studied with Felix Grundy the 
head of the Tennessee Bar, admitted 1820. 

(5) Born in 1790. 

(6) Born in 1782, Univ. of No. Car., admitted in 1811 under patronage 
of Andrew Jackson then judge of Supreme Court of Tennessee, in 1815 
went to Missouri. 

(7) Born in 1779, admitted 1801, went from Maryland to Cincinnati in 
1822, author of Reports 1821-39. 

(8) Born in 1789, admitted in 1816, U. S. Senator 1831-7. 

(9) Born in 1781, Princeton 1796, Judge U. S. Dist. Ct. 1810-21, U. S. 
Senator 1825-29, 1^40-52; U. S. Atty. Gen. 1829-31. 

(10) Born in 1791, Atty. Gen. of So. Car. 1818-22, U. S. Senator 1823. 
(n) Born in 1797, Atty. Gen. of So. Car. 1824-30, U. S. Atty Gen. 

1841. 



THE BAR 1815-1830. 381 

ing cases 1812-1813) was first published in 1815 ; Peter's Reports 
(Third Circuit, covering cases in New Jersey 1803-1818 and 
Pennsylvania 1815-1818) was first published in 1819; Washing- 
ton's Circuit Court Reports (Third Circuit, covering cases in New 
Jersey and Pennsylvania from 1803) was first published in 1826; 
Paine 's Reports (Second Circuit, covering cases in New York 
and Connecticut from 1810) was first published in 1827. 

Of the sale of Supreme Court reports, Daniel Webster wrote 
in 1818, reviewing volume three of Wheatoris Reports, "it is not 
very rapid. The number of law libraries which contain a com- 
plete set is comparatively small."(i) 

And as late as 1830, Joseph Hopkinson, reviewing the Con- 
densed Reports of the United States Supreme Court by R. Peters, 
wrote (2) : 

The editor goes on to inform us that the reports of the cases 
argued and determined in the Supreme Court are contained in 24 
volumes which are so costly that there are found but few copies 
. in many large districts of our country in which there 
are federal and state judicial tribunals. In some of those dis- 
tricts, not a single copy of the Reports is in the possession of 
anyone. . . . An important result of an extended circulation 
will be found in the dissemination of the knowledge 
of the labours and usefulness of this tribunal, and a correspond- 
ing increase with the people of the United States of their attach- 
ment and veneration for this department of their government. 
Few of our citizens know what this court has done for them. 

This period nevertheless was one of tremendous effect upon 
the future of American law, and especially of that branch known 
as Constitutional Law the distinctive creation of the great 
American judges and lawyers. 

In 1816. the great question of States' Rights was presented in 
Martin v. Hunter's Lessee (i Wheaton 305), by the refusal of 
the Virginia Court of Appeals to obey the mandate of the United 
States Supreme Court, issued in 1813 (Fairfax v. Hunter, 7 
Cranch 608) on the ground that the appellate power of the 
Supreme Court did not extend to revise a decision of the highest 
court of a State. The case was argued by Walter Jones, of Vir- 
ginia, again Samuel Dexter, of Massachusetts, (3) and St. George 

(1) See North American Review, Vol. VIII (Dec. 1818). 

(2) See American Quarterly Review, Vol. VII (March 1830). 

(3) Judge Story writing to Henry Wheaton, Jan. 8, 1817, in praise of 
the first volume of Wheaton's Reports refers to Dexter' s eloquent argu- 
ment : 



382 HARVARD LAW SCHOOL. 

Tucker of Virginia. As the case involved his native State, Mar- 
shall left the writing of the opinion of the Court to Story. This 
being the first great constitutional case which had arisen since 
Story had come upon the Bench, and as he had given little study 
to this department of the law during his practise at the Bar, and 
the views of the Republican party to which he belonged were 
widely different from those entertained by the Chief Justice in his 
broad construction of the constitution, no small curiosity was 
felt by his friends as to the determination his mind should take 
on these constitutional questions. 

When the opinion of the Court was read, it became evident that 
Story had turned a complete convert to Marshall's views, and no 
more vigorous decision upholding the fullest powers of the Fed- 
eral judiciary had yet been made.(i) 



"I received yesterday your obliging favor, accompanied with a copy of 
your Reports. I have read the whole volume through hastily, but con 
amorc. I am extremely pleased with the execution of the work. The 
arguments are reported with brevity, force, and accuracy, and the notes 
have all your clever discriminations and pointed learning. They are truly 
a most valuable addition to the text, and at once illustrate and improve it. 
I particularly admire those notes which bring into view the Civil and Con- 
tinental Law ; a path as yet but little explored by our lawyers. They are 
full of excellent sense, and juridical acuteness. In my judgment, there is 
no more fair or honorable road to permanent fame, than by thus breathing 
over our municipal code the spirit of other ages. . . . The kind notice 
of our friend Dexter in the preface, is delightful to us all. And turning 
to the case of Martin r. Hunter, I perceive the splendid paragraph with 
which he closed a most excellent argument preserved in its original 
brightness." 

(i) "Mr. Justice Story was of the democratic party, and shared the 
general views of that party on questions of constitutional politics ; but with 
a mind of too legal a cast to run into wild revolutionary extremes. Com- 
ing upon the bench with prepossessions of the character intimated, Mr. 
Justice Story rose immediately above the sphere of party; and with the 
ermine of office put on the sacred robe of the constitution and the law. 
Henceforward it became his duty, his desire, his effort, neither to strain 
the constitution, nor to travel round it, on the loose popular maxims which 
guide the partisans ; but to interpret it with impartiality and administer it 
with firmness." 

See review of Story's Commentaries on the Constitution, by Edward 
Everett, in North Amer. Reziew, Vol. XXXVIII (Jan. 1834). 

The broad Federal powers in which Story had come to believe were 
stated by him in a letter to Henry Wheaton, Dec. 13, 1815: 

"I was much pleased, on reading in a newspaper this morning, that you 
had published an essay on the necessity of a navigation act; most cordially 
do I subscribe to your opinion on this subject. I am truly rejoiced that 
there are found public spirited young men, who are willing to devote their 
time and talents to the establishment of a great national policy on all sub- 
jects. I hope you will follow up the blow by vindicating the necessity of 
establishing other great national institutions ; the extension of the jurisdic- 
tion of the Courts of the United States over the whole extent contemplated 
in the Constitution ; the appointment of national notaries public, and national 



THE BAR 1815-1830. 383 

The year 1818 was marked by the first important argument 
before the Court, by Daniel Webster, in a case involving the 
jurisdiction of the United States courts over a murder committed 
on a ship of war lying in Boston Harbor United States v. 
Bei'ans (3 Wheaton 336). 

On Dec. 9, 1818, Judge Story wrote, "The next term will prob- 
ably be the most interesting ever known" ; and this comment was 
certainly justified, for in the year 1819 the Court decided the 
three great cases of Dartmouth College v. Woodivard, Sturgis v. 
Crowninshield, and McCnlloch V. Maryland. 

The Dartmouth College Case was argued March 10-12, 1818, by 
Daniel Webster of Massachusetts, and Joseph Hopkinson of 
Pennsylvania, against William Wirt of Maryland, and John 
Holmes of Maine. It is graphically depicted in the following let- 
ters from Webster. On Feb. 17, 1818, he wrote to William 
Sullivan : 

Brother (R. G.) Amory and I are all the brethren of the Bos- 
ton Bar here I forgot (George) Blake Ogden and a Mr. Bald- 
win from New York; Hopkins, Sergeant, and C. J. Inger- 
soll, Philadelphia ; Harper, Winder, Baltimore ; Wickham, Leigh 
and Nicholas from Virginia; Berrien from Georgia, and the gen- 
tlemen of this District. Court meets at eleven, hears long 
speeches till four and adjourns. 

On March 13, he wrote to President Brown, of Dartmouth 
College : 

The argument in the cause of the College was finished yester- 
day. It occupied nearly three days. Mr. Holmes ventured to 
ask the Court whether it was probable a decision would be made 
at this term. 

The Chief Justice in answer said, that the Court would pay to 
the subject the consideration due to an act of the legislature of a 
State and a decision of a State court, and that it was hardly 
probable a judgment would be pronounced at this term. . 
Mr. Wirt said all that the case admitted. He was replied to in 
a manner very gratifying and satisfactory to me by Mr. Hopkin- 
son. Mr. Hopkinson understood every part of our cause, and in 
his argument did it great justice. No new view was suggested 
on either side. I am informed that the Bar here are decidedly 



justices of the peace; national port wardens and pilots for all the ports of 
the United States ; a national bank, and national bankrupt laws. I have 
meditated much on all these subjects, and have the details in a considerable 
degree arranged in my mind." 



384 HARVARD LAW SCHOOL. 

with us in opinion. On the whole, we have reason to keep up 
our courage. 

On the same day writing to Jeremiah Mason, he said : 

The case was opened on our side by me. Mr. Holmes fol- 
lowed. . . . Upon the whole he gave us three hours of the 
merest stuff that was ever uttered in a county court. Wirt fol- 
lowed. He is a good deal of a lawyer, and has very quick per- 
ceptions, and handsome power of argument, but he seemed to 
treat this case as if his side could furnish nothing but declamation. 

. . . Mr. Hopkinson made a most satisfactory reply keep- 
ing to the law, and not following Holmes and Wirt into the 
fields of declamation and fine speaking. ... I may say that 
nearly or quite all the Bar are with us. How the court will 
be I have no means of knowing. 

Of Webster's great argument, many accounts have been given, 
but none more vivid than that of Rufus Choate in his eulogy in 
1852 before the Bar of the United States Circuit Court, in Bos- 
ton: 

Some scenes there are some Alpine eminences rising above 
the high tableland of such a professional life, to which, in the 
briefest tribute we should love to follow him. We recall that day, 
for instance, when he first announced, with decisive display, what 
manner of man he was, to the Supreme Court of the Nation. It 
was in 1818, and it was in the argument of the case of Dart- 
mouth College. William Pinkney was recruiting his great fac- 
ulties and replenishing that reservoir of professional and elegant 
acquisition in Europe. Samuel Dexter, "the honorable man and 
counsellor and the eloquent orator," was in his grave. The bound- 
less old school learning of Luther Martin ; the silver voice, and 
infinite analytical ingenuity and resource of Jones ; the fervid 
genius of Emmett, pouring itself along immenso ore; the ripe 
and beautiful culture of Wirt and Hopkinson the steel point 
unseen, not unfelt, beneath the foliage; Harper himself, states- 
man as well as lawyer these and such as these were left of that 
noble Bar. 

That day, Mr. Webster opened the cause of Dartmouth Col- 
lege to a tribunal unsurpassed on earth in all that gives illustra- 
tion to a bench of law. 

One would love to linger on the scene when, after a masterly 
argument of the law, carrying, as we may now know, conviction 
to the general mind of the court, and vindicating and settling for 
his life time his place in that forum, he paused to enter, with an 
altered feeling, tone and manner, with these words on his pero- 
ration "I have conducted my alma mater to this presence, 



THE BAR 1815-1830. 35 

that if she must fall, she may fall in her robes, and with dignity", 
and he broke forth in that strain of sublime and pathetic elo- 
quence, of which we know not much more than that, in its pro- 
gress, Marshall the intellectual the self-controlled the unemo- 
tional, announced visibly the presence of the unaccustomed 
enchantment. 

The judges being greatly divided in opinion, no decision was 
rendered at this term ; and the defendants decided to retain 
William Pinkney and to ask for a re-argument. Hopkinson 
wrote to Webster, Nov. 17, 1818: 

In my passage through Baltimore I fell in with Pinkney who 
told me he was engaged in the cause by the present University, 
and that he is desirous to argue it if the court will let him. I 
suppose he expects to do something very extraordinary in it, as he 
says Mr. Wirt "was not strong enough for it, has not back 
enough." There is a wonderful degree of harmony and mutual 
respect among our opponents in this case. Yovi may remember 
how Wirt and Holmes thought and spoke of each other. . . . 
I think if the court consents to hear Mr. Pinkney it will be a 
great stretch of complaisance, and that we should not give our 
consent to any such proceeding. 

No re-argument was had however, and on Feb. 2, 1819, the 
Court rendered its decision, of which Hopkinson wrote Brown on 
the same day : 

Our triumph in the college cause has been complete. Five 
judges, only six attending, concur not only in a decision in our 
favor, but in placing it upon principles broad and deep, and 
which secure corporations of this description from legislative 
despotism and party violence for the future. The court goes 
all lengths with us, and whatever trouble these gentlemen may 
give us in the future, in their great and pious zeal for the interests 
of learning, they cannot shake those principles which must and 
will restore Dartmouth College to its true and original owners. 
I would have an inscription over the door of yovir building, 
"Founded by Eleazor Wheelock, Refounded by Daniel Webster." 

A contemporary opinion of this case is found in a review of 
volume four of Wheaton's Reports in 1820(1) : 

Perhaps no judicial proceeding in this country ever involved 
more important consequences or excited a deeper interest in the 
public mind than the case of Dartmouth College recently deter - 

(i) See North American Review, Vol. X (Jan. 1820). 



386 HARVARD LAW SCHOOL. 

mined. While the cause was pending, there was much anxiety 
felt for its final result by the friends of our literary institutions ; 
for it was early perceived that they stood on no surer foundations 
than Dartmouth College. . . . The gentlemen engaged in it 
had long been trained in the habits of forensic discussion ; and 
deeply feeling their responsibility to their task, all that ever 
makes men eloquent or convincing, reasoning and authority 
seemed to be exhausted, and the cause of Dartmouth College 
and of all literary corporations appeared to be fixed immovably 
on both. 

A few days later, on Feb. 17, 1819, the Supreme Court decided 
the case of Sturgis v. Crowninshield, declaring the insolvency 
act of New York unconstitutional and establishing the power 
of the States to pass such bankrupt laws, if confined to contracts 
made after the passage of the law. In view of the depressed 
condition of business affairs in the country this decision was of 
immense importance. ( I ) 

The case had arisen in the Circuit Court in Massachusetts in 1811, 
being one of the earliest cases over which Judge Story had pre- 
sided. In the Supreme Court, Joseph Hopkinson and David 
Daggett argued for the plaintiff, and D. B. Ogden and William 
Hunter for the defendant. 

Webster, writing to Jeremiah Mason, Feb. 15, 1819, two days 
before the opinion of the Court was rendered, said(2) : 



(1) The scope of the decision was not wholly understood at the time; 
and in 1828 we find the following amusing plaint of Chief Justice Isaac 
Parker in Hall v. Williams, 6 Pick. 243 : 

"This is not the first occasion we have had to regret a too prompt submis- 
sion to the decision of the Supreme Court of the United States; not, how- 
ever, from any diminution of respect for that eminent tribunal but because 
we have found that further consideration has brought about a qualification 
of the doctrine which seemed to have been definitely settled, or that some 
qualifying principle in the case itself has been overlooked by us in our 
readiness to yield supremacy to that court on all questions in which by the 
Constitution their judgment is paramount. I allude to the decision of that 
court on State insolvent laws in the case of Sturgis v. Crowninshield, 4 
Wheat. 722, the effect of which we understand to be to overrule the decision 
of this court in the case of Blanchard v. Russell; in consequence of which 
we dismissed several cases which might have been maintained on the 
grounds of that decision. We have since learned by the case of Ogden v. 
Sounders, 12 Wheat. 213, that there is no decision of the Supreme Court 
of the United States militating with our decision and feel ourselves 
justified in recurring to the principle there decided on the law of this 
Commonwealth. . . . 

Held until further decided by the United States Supreme Court we con- 
strue Mills v. Duryee, 7 Cranch 481, as meaning only that judgments of 
foreign States are binding, only if service had been obtained on defendant 
and jurisdiction." 

(2) The Writings and Speeches of Daniel Webster, Vol. XVI (1903). 



THE BAR 1815-1830. 37 

Nothing has been as yet done with the Bankruptcy (Bill), and 
it seems too late to do anything. The question is before the 
court whether the State Bankrupt Laws are valid. The general 
opinion is that the six judges now here will be equally divided 
on the point. I confess, however, I have a strong suspicion 
there will be an opinion, and that that opinion will be against 
the State laws. If there were time remaining, the decision, should 
it happen, might help through the bill. 

The question between Maryland and the Bank is to be argued 
this day week. I have no doubt of the result. 

The reference at the end of Webster's letter was to the third 
great case decided at this session of the court McCulloch v. 
Maryland, which upheld the power of a State to tax a National 
Agency, and also the constitutionality of the Act of Congress 
chartering the Bank of the United States. This case arose out 
of the unpopularity of the new Bank of the United States, and 
the attempt of Maryland to tax its branch out of business, Mc- 
Culloch being its cashier(i). The arguments of Pinkney, Wirt 
and Webster for the Bank, and of Martin, Hopkinson and Jones 
for the State had extended over a week ; and of Pinkney' s great 
effort, Judge Story wrote March 3, 1819: 

Mr. Pinkney rose on Monday to conclude the argument; he 
spoke all that day and yesterday, and will probably conclude 
to-day. I never, in my whole life, heard a greater speech; it 
was worth a journey from Salem to hear it; his elocution was 
excessively vehement, but his eloquence was overwhelming. His 
language, his style, his figures, his arguments, were most Dnihant 
and sparkling. He spoke like a great statesman and patriot, and 
a sound constitutional lawyer. All the cobwebs of sophistry and 
metaphysics about State rights and State sovereignty he brushed 
away with a mighty besom. We have had a crowded audience 
of ladies and gentlemen ; the hall was full almost to suffocation, 
and many went away for want of room. 

Of the opinion he wrote, March 7, "that it excites great inter- 
est and in a political view is of the deepest consequence to the 
nation. It goes to establish the Constitution upon its great 
original principle." And so great a blow to State sovereignty 
was this decision felt to be that Marshall wrote to Story, May 27, 
1819: 

(i) The Bank of the United States was the chief litigant in the 
Supreme Court, 1815-1830, being involved in 23 cases. Its regular counsel 
was John Sergeant of Pennsylvania; but Daniel Webster and Henry Clay 
were retained in a large number of its important cases.